Wage and Hour Defense Blog

Following the California Supreme Court’s remand of Naranjo v. Spectrum Security Services, Inc., the California Court of Appeal in that same case held that the defendant-employer had not committed “knowing and intentional” violations of the wage statement statute by not including meal period premiums on the wage statements and had not “willfully” paid all wages due at the end of employment by not previously paying meal period premiums that were owed. The Court held that, although the employer did not prevail on its defense that employees in a certified class action were subject to valid on-duty meal period agreements, neither waiting time penalties (capped at 30 days’ of wages at the daily rate of pay for each former employee) nor wage statement penalties (capped at $4,000 per employee) could be imposed against the employer given the good faith dispute that any meal period premiums were owed.

Misclassifying workers as independent contractors rather than employees is a costly mistake.  Among the many issues arising from misclassification is potential liability under federal and state minimum wage and overtime laws.  As the laws continue to change and develop, so do the risks to contracting entities.

Federal Changes

Many people are employed at airports.  Of those, many individuals work within the terminals for private companies.  Federal law requires that those employees who work in the terminals must go through security checks – just like travelers.

Jesus Cazares was one of those employees, working at Los Angeles International Airport (LAX).  In bringing a lawsuit against his employer, Host International, Inc. – which operates the Admiral Club at LAX – Cazares alleged that he and his fellow employees were not paid for the time they spent passing through airport security checks en route to their work at the Admiral Club.  The district court rejected the notion that such time is compensable under California law and, earlier this month, the Ninth Circuit agreed in Cazares v. Host International, Inc.

Employers grappling with the many questions related to bringing employees back into the workplace safely in the midst of the COVID-19 pandemic should pay close attention to the potential wage-and-hour risks attendant to doing so—including whether to pay employees for time spent waiting in line for a temperature check, verifying vaccination status, or completing other health screening inquiries.

Given the growing trend of COVID-19 lawsuits, ignoring these risks could leave employers vulnerable to costly class and collective action litigation.

What the Law Requires

Under ...

In a decision that seems like to be reviewed by the California Supreme Court or rejected by other California Courts of Appeal, one of California’s appellate courts has issued a perplexing decision holding that even employees whose claims are time-barred can file representative actions under California’s Private Attorneys General Act (“PAGA”).

In Gina Johnson v. Maxim Healthcare Services, Inc., the Fourth Appellate District held that the plaintiff could pursue PAGA claims on behalf of other employees even though her own claims were barred by the statute of limitations.

For decades, the practice of motor carriers arranging for freight to be transported by independent owner-operators—i.e., independent contractors who drive their own trucks—has been ubiquitous. However, this practice is now under threat in California because of a recent court decision.

On April 28, 2021, in California Trucking Ass’n v. Bonta, No. 20-55106 (9th Cir. 2021) (“CTA v. Bonta”), the United States Court of Appeals for the Ninth Circuit addressed whether the broad preemption language of the Federal Aviation Administration Authorization Act of 1994 ...

We have previously discussed on this page how rounding practices can be problematic.  Now, in Donohue v. AMN Services, LLC, the California Supreme Court has provided yet another reason for employers in California to review their time rounding practices, as well as their meal period practices.

As we previously discussed, more than eight years ago in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court clarified many of the general requirements for meal and rest periods under California law.  Relevant to the decision in Donohue, the Court held that employees must be ...

In November 2020, California voters approved Proposition 22, removing businesses that operate on-demand rideshare and food delivery platforms from the scope of AB 5, California’s controversial independent contractor law.  But before voters approved Proposition 22, the Attorney General of California filed suit against two such businesses, seeking injunctive relief, restitution, and penalties.

As we wrote about here, in August 2020, a California Superior Court judge issued a preliminary injunction prohibiting those businesses from treating drivers who use their ...

November 3, 2020 has been circled on the calendars of app-based ride share and food delivery companies doing business in California for many months now.  After a new ruling by the California Court of Appeal, those companies have likely gone back and circled that date a few more times in thick red ink.

On November 3, 2020, California voters will decide the fate of Proposition 22, the ballot initiative that, if passed, will allow app-based ride share and food delivery companies to treat drivers as independent contractors rather than as employees, carving them out of California’s ...

Many employers with operations in California may already be familiar with Frlekin v. Apple, Inc.  The heavily litigated case, first filed in 2013, involves claims that Apple retail employees are entitled to compensation for time spent waiting for and undergoing mandatory exit searches.

The Ninth Circuit has now concluded that those employees are entitled to be paid for that time, holding that they are entitled to an award of summary judgment in their favor.  That is a far cry from the original 2015 ruling in the case in which United States District Court Judge William Alsup denied the ...

We have written frequently here about AB5, California’s controversial law that creates an “ABC” test that must be satisfied in order for a worker to be treated as an independent contractor.  As we explained here, AB5 codified and expanded the “ABC” test adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court for determining whether workers in California should be classified as employees or as independent contractors.

While the statute was unambiguously aimed at ride share and food delivery companies that treat drivers as ...

Faced with the question of whether unionized employees and their employer can bargain away the right to be compensated for employer-mandated travel time, a California Court of Appeal has ruled that they in fact may not do so.  In Carlos Gutierrez v. Brand Energy Services of California, Inc., the Court concluded that Wage Order 16 (Cal. Code Regs., tit. 8, § 11160) requires that employees be paid for all employer-mandated travel time — and that it cannot be negotiated away by a union and the employer.

The plaintiff in the case was a journeyman scaffold worker at gasoline refineries. He and ...

Given the prevalence of wage-hour class actions filed against California employers, the Ninth Circuit Court of Appeals from time to time asks the California Supreme Court to clarify certain California wage-hour laws. Last week, the Ninth Circuit asked again in Cole v. CRST Van Expedited, Inc., seeking clarification on the following two questions:

1. Does the absence of a formal policy on meal and rest breaks violate California law?
2. Does an employer’s failure to keep records of meal and rest breaks taken by employees create a rebuttable presumption that the breaks were not provided?

We have written previously about California’s obscure wage rule pertaining to “suitable seating,” which requires that some employers provide some employees with “suitable seating” in some circumstances if the “nature of the work reasonably permits it” – and exposes employers to significant penalties if they do not do so.

Faced with a dearth of guidance on the obscure rule and with a wave of class actions following the discovery of the rule by the plaintiffs’ bar, the Ninth Circuit Court of Appeals threw up its hands last year and asked the California Supreme Court ...

It is not often that long-standing laws cause a federal court to throw up its arms, but for the second time in little over a year, the Ninth Circuit Court of Appeals has done just that in attempting to understand a California employment law.

Last year, the Ninth Circuit threw up its hands and asked the California Supreme Court to clarify California’s obscure “suitable seating” laws, about which we wrote here.

Now, in Mendoza v. Nordstrom, Inc., the Ninth Circuit has thrown up its hands again, this time asking the California Supreme Court to clarify California’s day-of-rest laws.

By:  Michael Kun

This morning, the California Supreme Court has just issued its long-awaited decision in the Brinker case regarding meal and period requirements.   It is largely, but not entirely, a victory for employers.  A copy of the decision is here.

A few highlights of the decision:

On rest periods, the Court confirmed the certification of a rest period class because Brinker’s written policy arguably did not comply with the law as to the second rest period in a day.  In so doing, it clarified when employees are entitled to rest periods:

·         Employees are entitled to 10 minutes’ rest for ...

By Michael S. Kun and Aaron Olsen

You probably remember the scene in Jaws when Roy Scheider's character first sees the shark that he and his crew have been pursuing.

And you probably remember what he says: "We need a bigger boat."

Well, after the California Supreme Court's latest ruling, California employers may need a bigger boat.

Already besieged by wage-and-hour class actions, California employers now need to brace themselves for a new wave of representative actions under California’s Private Attorneys General Act ("PAGA") after the California Supreme Court has made it ...

 By Michael Kun

     The wage hour class action epidemic that has plagued California employers for the last decade or so appears to have no end.

    If anyone tells you otherwise, they are not paying enough attention. 

    And if they tell you the California Supreme Court is about to put an end to the epidemic, they are mistaken about that, too. 

    The California Supreme Court couldn't put an end to it even if it wanted to, at least not with the issues now before it.  And who is to say that they want to do that anyway?

    As in recent years, employers and their counsel are awaiting several important rulings from the ...

by Michael Kun and Kathryn McGuigan

In recent years, the alleged misclassification of employees under California's wage and hour laws has been a hotly contested issue and the subject of a great many class actions. Faced with several appeals pending before it, the Ninth Circuit has now sought guidance from the California Supreme Court on the outside salesperson and administrative exemption tests as they apply to pharmaceutical sales representatives. Such guidance should prove invaluable to employers in the industry, and to parties to these claims.

In D’Este v. Bayer ...