California Supreme Court Clarifies Proper Way to Pay Meal Period and Rest Break Premiums
The California Supreme Court, in the case of Jessica Ferra v. Loews Hollywood Hotel, LLC recently clarified the correct way to calculate meal period and rest break premium pay . . . and it’s not how most California businesses were calculating it. What are Meal Period and Rest Break Premiums? California Labor Code Section 226.7 requires employers to pay employees “one additional hour of pay at the employee’s regular rate of compensation for each workday” that an employee was not provided with a meal or rest period. Unfortunately, many employers are not aware of this requirement to pay a meal and rest period premium if employees are not able to take their meal breaks and rest breaks. Before we discuss the correct way to pay the premiums, let’s review the basic meal and rest break rules in California. What are the Rest Break Rules in California? In California, the Wage Orders require employers to authorize and permit non-exempt employees to take a 10-minute, uninterrupted, rest period for each four-hour work period or major fraction thereof. The Division of Labor Standards … Continue reading
Off-the-Clock Work Must be Paid
Last week, the California Supreme Court, in a case called Troester v. Starbucks Corporation, confirmed that California wage and hour law “does care for small things.” In this case, it cares about small increments of time spent on work off-the-clock by hourly employees. Small increments in this case is about 4 to 10 minutes after clocking out. De Minimis Doctrine This is a departure from federal law’s more employer-friendly version of the de minimis doctrine. The de minimis doctrine is an established defense under the Fair Labor Standards Act (FLSA), which allows employers to disregard time as de minimis (and therefore not have to pay employees for that time) if the employer could prove: (1) it would be difficult and impractical for the employer to record the additional time; (2) the total amount of compensable time is minimal; and (3) the additional work is irregular. For example, pre-shift or post-shift meetings. Starbucks Hourly Employee Worked 4 to 10 Minutes Off-the-Clock Each Shift In the Troester v. Starbucks case, Douglas Troester worked for Starbucks as an hourly shift supervisor. As part of … Continue reading
Wage Claim Process in California
In California, workers who believe that they are owed wages, overtime, or vacation pay may file their claims in court or with the Labor Commissioner. Claims filed with the Labor Commissioner are adjudicated by the Division of Labor Standards Enforcement (DLSE) and is a much more informal process. If you recently received a Notice of Claim and Conference from the DLSE, here is an overview of what the process normally looks like. Worker Filed a Claim. The process began with an employee (plaintiff) filing a DLSE claim form alleging that his/her employer (defendant) failed to pay wages or other compensation owed to the plaintiff. After the claim is assigned to a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how to proceed. Within 30 days of the filing of the complaint, the deputy will notify the parties as to which of the following actions the DLSE will take as to the claim: referral to a conference; referral to a hearing; or dismissal of the claim. Not all cases will go to a … Continue reading
New California Law: Wage Notice Requirement and Increased Exposure for Employers
AB 469, which is titled the “Wage Theft Prevention Act” is aimed at ensuring the collection on judgments against employers for violations of wage laws. Increased Exposure for Employers Who Violate Wage Statutes 1. The new law will make it a misdemeanor if an employer willfully violates specified wage statutes or orders, or willfully fails to pay a final court judgment or final order of the Labor Commissioner for wages due. 2. The new law will extend the time limit for the Division of Labor Standards Enforcement to commence a collection of a statutory penalty or fee against an employer from 1 year to 3 years after the penalty or fee became final. 3. The new law will extend the time required for an employer who has been convicted of a subsequent wage violation or who has failed to satisfy a judgment to maintain a bond for 2 years (up from 6 months). The bond is necessary in order for the business to continue operating. New Wage Notice Requirement Additionally, this new law will require an employer to provide each … Continue reading
Exempt vs Non-Exempt Employee – $17 million Suit for Misclassifying Employees
On September 26, 2011, the California Labor Commissioner filed a $17 million suit against ZipRealty for violations of minimum wage and overtime pay of its real estate agents. The premise for lawsuit is that ZipRealty misclassified its agents as exempt “outside salespersons” when they were in fact non-exempt employees. The significant fact here is the allegation that the real estate agents spend less than 50% of their time away from the office. If the ZipRealty loses, it would be liable for 4 years of unpaid wages, meal and rest break premiums, unpaid overtime, plus other penalties and interests. Yikes. What is the difference between exempt vs non-exempt employees? We’ll take a look at who qualifies as an exempt outside salesperson. According to Wage Order Nos. 1-2001-16-2001, §2, an outside salesperson is a person age 18 or older who customarily and regularly spends more than half of his or her working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities. What the lawyers will spend a … Continue reading