Wage & Hour

This decision holds that at least when the employer can and does capture time worked to the exact minute, it cannot justify not paying an employee for every minute worked by relying on a facially neutral policy of rounding time to the nearest 15 minutes.  California law requires payment of employees for all time worked, and disallows any de minimus… Read More

This decision reverses a judgment for the employee in a suit for unpaid overtime wages because of a botched special verdict question regarding the employer's affirmative defense that the employee was an exempt executive under Wage Order No. 5.  The question asked only if the employee spent more than 50% of her time on exempt duties.  The question overemphasized the… Read More

Following Naranjo v. Spectrum Security Services, Inc. (2022)  13 Cal.5th 93, this decision holds that penalty pay for missed rest and meal breaks is "wages" and failure to pay those wages triggers waiting time and wage statement penalties under Lab. Code 202 and 206, and liability for attorney fees under Lab. Code 218.5 which directs a fee award to a… Read More

Usually, any agreement to waive the employee's right to sue under PAGA is unenforceable.  But there is an exception for collective bargaining agreements that cover construction workers, provide for wages, hours and working conditions, set forth a grievance and arbitration remedy for Labor Code violations, allow the arbitrator to award all remedies authorized by the Labor Code and clearly waive… Read More

Enacted in 2002, Civ. Code 3339, Gov. Code 7285, Health & Saf. Code 24000, and Lab. Code 1171.5 each provide that all rights and protections of law are available to all without regard to immigration status, that immigration status is irrelevant to proof of liability for violation of state labor, employment, civil rights, consumer protection, and housing laws, and that… Read More

The district court erred in certifying a plaintiff class in this case challenging defendant's classification of its property preservation workers as independent contractors and asserting claims for overtime pay and expense reimbursement.  Plaintiffs could not prove fact of damage--not just amount of damage--by common evidence since some class members had not worked overtime or incurred reimbursable business expenses.  The district… Read More

This decision rejects plaintiff's argument that the PAGA statute violates the state constitution's separation of powers clause because it supposedly allows private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.  The contention is barred by Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 which held that “PAGA… Read More

An employee who complains to the DLSE and seeks relief from the Labor Commissioner in a Berman hearing is entitled to back wages for the limitations period calculated backwards from the date the employee files an initial report or claim with the DLSE, not from the later date of filing a formal complaint.  Though it doesn't say so expressly, Lab.… Read More

Agreeing with Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668, this decision holds that the employer did not violate Lab. Code 226(a)(9) by not stating a wage rate or hours worked for a true-up of overtime pay for the preceding month's work based on the flat rate bonus paid that month.  The statute requires wage statements to… Read More

This decision holds that an employer did not have to pay job applicants for the time and expense of taking drug tests as a precondition for employment.  The employer's control over the drug tests was not control over the performance of work and so didn't make the applicants employees.  Nor was the drug test a condition subsequent to employment.  Instead,… Read More

The extra hour's penalty pay that an employer must pay a worker who has been denied a meal break is wages, and so failure to pay the hour's wage triggers the additional waiting time and insufficient wage statement penalties under Lab. Code 203 and 226.  The employee is entitled to 7% prejudgment interest on the hour's penalty wages. Read More

Following Usher v. White (2021) 64 Cal.App.5th 883, this decision holds that, under Lab. Code 558.1, an owner, officer, director, or managing agent of the employer may be held liable for the employer's violation of an IWC wage order or of certain wage and hour sections of the Labor Code if the individual defendant had some oversight of the employer's… Read More

The trial court did not abuse its discretion in denying class certification in this wage and hour case.  Insofar as plaintiff claimed that the employer's rounding of hours worked was illegal, the trial court properly found that noncommon issues predominated because it had no single rounding policy but left matters up to managers at its different locations.  Plaintiff's theory that… Read More

A volunteer working for a charitable organization without the expectation of payment for his work is not an employee for purposes of state wage and hour laws.  The trial court did not abuse its discretion in denying certification of an alleged class of all workers for the defendant charity who did not receive pay for their work.  There was a… Read More

Affirming an order denying an employer's motion to compel arbitration of the worker's wage and hour, retaliation and discrimination in employment claims, this decision holds the agreement was at least minimally procedurally unconscionable as it was an adhesion contract.  It also holds two provisions substantively unconscionable, one requiring any claims to be brought within a year of discovery (despite statutes… Read More

Before filing a PAGA suit, a plaintiff must send a pre-suit notice to the Labor and Workforce Development Agency and the employer describing the facts and theories to support the alleged violation. Lab. Code 2699.3.  This decision holds that at least when the notice reveals a violation that is likely to have affected more workers than the individual prospective plaintiff… Read More

The plaintiff's alleged failure to give adequate pre-suit notice to the Labor and Workforce Development Agency and the employer before filing a PAGA suit is an affirmative defense which the employer waives either by not pleading it in the answer or by, even if so pleaded, not pursuing it as a defense by pretrial motion or at trial. Read More

Lab. Code 226.3 provides for heightened civil penalties in connection with an employer's violation of wage statement requirements of Lab. Code 226.  Disagreeing with Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, this decision holds that by its plain language, section 226.3 allows for assessment of those heightened civil penalties only when the employer fails to provide… Read More

California's wage statement law (Lab. Code 226) applies to workers based in California who do not work half the time in a different state.  Here, the plaintiff airline crew members were based in California, beginning and ending each sequence of flights there.  They did not spend half their work  time in any other state, so California's wage statement law applied… Read More

In ruling on a motion for approval of a settlement of a PAGA claim, the trial court should apply the "fair, adequate and reasonable" standard applied to approval of class action settlements. Because many of the factors used to evaluate class action settlements bear on a settlement’s fairness—including the strength of the plaintiff’s case, the risk, the stage of the… Read More