We’re pleased to announce that the 2018 version of our Cal-Peculiarities: How California Employment Law is Different, your indispensable California employment law guide, is arriving next week, to coincide with our annual update Webinar on the same subject.  This edition, like its predecessors, aims to help private employers understand what’s peculiar about California employment

(Illustration)CompetitionDear Friends and Loyal Readers,

We need your help!  The Cal-Peculiarities Employment Law Blog has been invited to participate in a “best legal blog competition” sponsored by The Expert Institute.   If you appreciate our weekly posts, we would very much appreciate your nominating us in the Labor & Employment category.

If our blog is selected

Defense and attack .fatBy David Kadue

The traditional posture of California employers apprehensive about “gotcha” wage and hour claims is to hunker down and wait for the next lawsuit. But a few brave souls have taken the offensive. We celebrate two examples here. We cannot guarantee the success of their efforts, but we applaud their courage.

Declaratory relief action against California Labor Commissioner

One annoying peculiarity of California employment law is the Bluford doctrine, announced in a 2013 Court of Appeal decision called Bluford v. Safeway Inc. The Bluford case announced that truck drivers—already paid handsomely by mileage rates and by hourly rates for specified tasks and situations—were entitled to additional, separate pay for each rest period, under a notion that “employees must be compensated for each hour worked at either [1] the legal minimum wage or [2] the contractual hourly rate.” The court found it immaterial that the truck drivers earned, on an hourly average, far more than the minimum wage. Although Bluford was a controversial decision, the California Supreme Court declined to grant the employer’s petition for review.

OK. Fair (or unfair) enough. Then came the California Labor Commissioner and the Division of Labor Standards Enforcement, to rub salt in the Bluford wound. The DLSE determined that employers who pay on a piece-rate basis not only must separately pay for rest periods, but also must pay for those periods at a rate higher than the minimum wage or a contractual wage. According to the DLSE, an employer must pay piece-rate workers for rest periods at a rate equal to their average hourly piece-earning rate (which would vary on a continuous basis and which could greatly exceed the minimum wage). The DLSE announced this determination in a November 2013 internal memorandum, developed without the benefit of a rule-making process. The resulting “underground regulation” robs piece-rate paying employers of the certainty of paying rest periods at a fixed, pre-determined hourly rate.

Certain agricultural employers, heavily reliant on piece-rate labor, got mad as heck and decided not to take it anymore. In April 2015, in a case entitled Ventura County Agricultural Association v. Su, employer associations sued the government. They brought a petition for writ of mandate and a complaint for declaratory and injunctive relief in Sacramento County Superior Court. They argue that the DLSE has issued an unlawful regulation and one that is contrary to Bluford. We wish them well.

Making a federal case out of compelling a plaintiff to arbitrate PAGA claims
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By David Kadue

On Tuesday, January 20, 2015, the Court declined to take the case of CLS Transportation Los Angeles, LLC v. Iskanian, in which an employer asked the Court to reverse a ruling of the California Supreme Court. At issue was whether an employee who has agreed to submit all employment-related claims to arbitration, and who has also agreed to waive participation in class and representative actions, can evade that agreement and sue the employer under California’s Private Attorney General Act (“PAGA”). The California Supreme Court in June 2014 had sided with the suing employee.

Many observers expected that the case would be the latest episode in a drama that features a complicated relationship between two supreme courts. To simplify a bit, the U.S. Supreme Court traditionally has read the Federal Arbitration Act (“FAA”) to require the enforcement of private arbitration agreements by their terms. The California Supreme Court, meanwhile, has often searched creatively for some Cal-centric reason to deny enforcement to arbitration agreements.

Recent examples of the contrasting supreme viewpoints have occurred in the context of arbitration agreements that waive the procedural right to proceed or participate in a class action. The California Supreme Court once held, in both the consumer-claim context and in the employee-claim context, that a class-action waiver in an arbitration agreement is unenforceable, because any such waiver offends the California public policy favoring class actions. But then the U.S. Supreme Court, in Concepion v. AT&T Mobility, ruled in 2011 that the FAA preempts the California ban on class-action waivers. Concepion involved a consumer complaint. For several years, California courts resisted the clear implication that Concepcion also applies to employee complaints. Finally, in Iskanian, the California Supreme Court relented, acknowledging that, under the FAA, class-action waivers in arbitration agreements are enforceable, even in California.
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By Nick Geannacopulos and Emily Barker

You have likely noticed that business interactions and the way people communicate professionally have declined in formality over recent years.  The “Friday Casual” day has become the casual week.  Formal letters have turned into short emails.  Even slang has devolved to emoticons and language unheard of in the workplace

By Dana Peterson and David Rosenberg

In today’s increasingly mobile workplace, employers often require their non-exempt employees to head out of the office for such things as client meetings, off-site events and training.  Understanding when you must pay employees when they’re on the move might help you avoid a train wreck down the road (pun intended.)

The basics.  If you’ve been following our blog with any regularity, the following should come as no surprise: when determining whether travel time is compensable, the applicable California and federal standards differ quite a bit.   For instance, federal law defines “hours worked” as: (a) all time during which an employee is required to be on duty or be on the premises or workplace of the employer, and (b) all time during which an employee is “suffered or permitted to work,” whether or not the employee is required to do so.

By contrast, California defines the term “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all time the employee is suffered or permitted to work, whether or not required to do so.”  I.W.C. Wage Orders, Section 2 (emphasis added).  Therefore, employees must be compensated for time that they are “subject to the control” of the employer, even if they are not “suffered or permitted to work” during that time. 

Enough with the legal jargon, when do I need to pay for travel time?
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By Brian P. Long

It is a fairly common practice for companies to have non-exempt employees available by phone at the drop of a hat to respond to emergencies and other unexpected business needs.  Yet, if the employee doesn’t actually respond to any phone calls or do anything during that time period, is the company still required to pay them for the mere possibility that their services may at some point be needed?

Any time during which employees are subject to control by the company may be “hours worked,” even though the employees don’t actually perform any work and possibly even if they are able to spend the time doing whatever they choose.

So how do companies know if the employee is under their “control” during on-call/standby time?  Like many other areas of California employment law, whether the answer to this question is yes or no turns on the employee’s specific situation.

There have to be some general rules, right?  Non-exempt employees may be on-call during unscheduled work hours to respond to calls for help from work.  On-call time can be either controlled or uncontrolled, depending on how restricted the employee is in being able to utilize the time for personal pursuits.

To be controlled or uncontrolled: That is the question.  Of course, because this is California, there is no hard and fast rule about how many times an employee’s day or evening must be interrupted or for how long that interruption can last before all of the on-call time (not just the time the employee spent dealing with the interruption) rolls into the controlled category as opposed to uncontrolled.  Factors that are considered include:
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