Discretion: The Better Part of Valor in Defending Against California PAGA Claims

Since the Supreme Court’s decision in Viking River Cruises v. Moriana, California employers have been implementing and enforcing arbitration agreements requiring employees to arbitrate their individual Private Attorneys’ General Act (“PAGA”) claims. But what happens to the representative PAGA claim once the employee’s individual PAGA claim has been severed and sent to arbitration? The U.S. Supreme Court held in Viking River that the representative PAGA claim had to be dismissed from court because of the mandatory arbitration agreement. But, Justice Sonia Sotomayor’s concurring opinion in that case left the last word on standing to California courts and the California legislature.

Since Viking River, California courts have issued mixed and inconsistent rulings regarding what to do with the representative PAGA claim once the employee’s individual claims are compelled to arbitration. Some courts have dismissed the representative claims. Others have stayed the representative claim while the arbitration of individual claims proceeds. 

Last week, the California Supreme Court considered that question during oral argument in Adolph v. Uber (Supreme Court Case No. S274671). A decision is expected to be issued in Adolph within 90 days. In the meantime, let’s review the key elements from the oral argument.

The Justices peppered counsel for both sides with questions during oral argument.  A number of Justices seems skeptical that staying the representative action made sense as they aggressively questioned whether a plaintiff has sufficient “skin in the game” to prosecute the representative PAGA claim after their individual PAGA claim is already resolved in arbitration. Another key issue discussed during oral argument was whether a representative PAGA claim should be stayed during the arbitration of individual claims. Adolph Counsel’s argument that a stay of a representative PAGA claim may not always be required – while conceding that Uber’s arbitration agreement expressly required a stay – was also met with skepticism by the Court. A plaintiff’s standing to bring a PAGA claim will be decided as part of the arbitration and the potential for inconsistent findings between the arbitrator and the court is precisely the type of situation in which a stay is typically granted.  

Prior PAGA decisions allow a plaintiff with minimal standing (i.e., skin in the game) to proceed with representative PAGA claims. For example, in Kim v. Reins Int’l Cal., a PAGA plaintiff who settled his individual claims in arbitration in which the settlement agreement expressly carved out settlement of the PAGA claim on a representative basis) was held to have preserved standing to prosecute the representative PAGA claim in court. In Huff v. Securitas Sec. Servs., the court held that a PAGA plaintiff has standing to bring claims on behalf of others for alleged Labor Code violations that they themselves never suffered, as long as the plaintiff suffered at least one Labor Code violation. If these prior cases providing for a minimal standing requirement and the stated legislative goal of ensuring compliance with the Labor Code are given deference by the California Supreme Court, it is likely that the Court will allow and even encourage representative PAGA claims to remain stayed in court until the resolution of the arbitration of a plaintiff’s individual claims. However, if the Court looks to formulate a more politically based solution, then a different conclusion will be drawn in the final Adolph opnion. 

In the meantime, what strategies should employers consider in defending against PAGA cases?

  1. Cure alleged violations, if possible. PAGA allows employers to cure certain violations. If the initial LWDA exhaustion letter alleges claims that can be cured, employers should act quickly since they only have 33 days from the postmark date of the LWDA exhaustion letter to cure the alleged violation. A plaintiff cannot pursue PAGA claims if they have been timely cured. So, early evaluation of initial LWDA exhaustion letters is key.
  2. Evaluate whether to compel arbitration. If there is an arbitration agreement with employees providing for individual arbitration of claims, including individual PAGA claims, consider whether it is best to proceed in arbitration or not.  

If California employers that are faced with PAGA claims by employees who have signed mandatory arbitration agreements proceed in individual arbitration and the PAGA representative claim is stayed (or later refiled) and the plaintiff is successful in arbitration, then employers may face an uphill battle with respect to those claims on the representative PAGA claim, although the employer could raise factual and legal defenses as to how any alleged violation suffered by the PAGA representative was not suffered by all or most of the “aggrieved employees” s/he seeks to represent. However, California employers should consider and weigh the heightened exposure because the number of pay periods upon which PAGA penalties can be imposed will likely increase during the time the case was stayed pending the arbitration. So, in those cases where a plaintiff can demonstrate a clear violation and individual defenses may be challenging, it actually may be in the employer’s best and most economical interest to proceed to early resolution rather than delay the process by compelling individual arbitration.

If an evaluation of a plaintiff’s allegations, timecards, and pay records does not establish a clear violation, then compelling arbitration while the representative PAGA claim is stayed is likely the most cost effective way of resolving whether plaintiff has standing, while at the same time avoiding broad and expensive discovery as to other employees.

In short, just because an employer can compel arbitration doesn’t necessarily mean they should.  PAGA litigation is complex. Although a thorough and early evaluation of claims can be costly, it often helps save significant litigation costs in the long run. 


Wage & Hour Trap for California Employers: The Regular Rate of Pay Calculation

In California, non-exempt employees who are not part of a proper alternative workweek schedule are entitled to premium overtime wages at one and one-half times the employee’s regular rate of pay for any time worked over (a) eight (8) hours in a single workday, (b) forty (40) hours in a single workweek, or (c) six (6) consecutive days in a single workweek. Further, in California, the overtime premium must be paid out at double an employee’s regular rate of pay for any time worked (a) in excess of twelve (12) hours in a single workday or (b) in excess of eight (8) hours on the seventh consecutive day of work in a workweek.

For many California employees, the calculation is simple enough using the employee’s base hourly rate multiplied by either 1.5 or 2.0 to determine the Overtime or Double time rate for the corresponding hours in accordance with the above requirements. However, the regular rate of pay calculation may become increasingly more complicated in California when other forms of remuneration, such as incentives, are paid out, or when an employee is paid at multiple rates.

Below is a list of some of the primary forms of other “remuneration” that employees may receive as well as a discussion of when such payments may or may not impact the regular rate of pay calculation in California:

  • Discretionary v. Non-Discretionary Bonuses: If a bonus is discretionary, it can be excluded from the regular rate of pay calculation, whereas a non-discretionary bonus needs to be factored into the regular rate. Simple enough, right? However, for a bonus to truly be discretionary, and thus not factored into the regular rate calculation for payment of overtime hours, whether or not payment is made needs to be at the sole discretion of the employer and made at or near the time it is paid out and not based on any promise or prior agreement. Simply calling a bonus “discretionary” or even a bonus plan that may contain certain discretionary elements does not necessarily make it truly optional or at the sole discretion of the employer. Non-discretionary bonuses, on the other hand, are intended to incentivize employees in some way and may include bonuses for productivity, hitting certain metrics, or even attendance goals. Generally, a non-discretionary bonus is one that is paid out under a prior agreement, contract, or promise, as well as one that is based on a specific formula or metrics being triggered. However, the line between a discretionary and non-discretionary bonus may get blurred when it has elements of both, making the determination of whether it should be factored into the regular rate of pay calculation less clear-cut at times. In close cases, many judges in the California courts and California Labor Commissioner tend to side with the employees.
  • Other Bonuses: Even within this above distinction, certain bonuses may not fall squarely within these parameters. For example, a hiring bonus paid out at the start of employment is generally not dependent or tied to any performance metrics or length of employment and therefore is not intended to incentivize any future behavior where it could likely be excluded from the regular rate of pay calculation. However, when such a bonus is also tied to a retention requirement or length of service scale it begins to incorporate certain formulaic elements and/or future incentives that likely shifts such a bonus into the realm of being non-discretionary and therefore a factor for the regular rate of pay calculation. To further complicate matters, flat sum bonuses (ones that do not operate to increase/decrease in proportion with hours worked) and percentage bonuses (paid on a percentage of gross wages when benchmarks are met) may appropriately be calculated in a variety of methods for determining regular rate of pay and thus overtime payment rates, as reported previously in blog posts by our Nor Cal representatives, CDF Labor Law LLP:

Certain statutory exclusions from the regular rate of pay calculation do exist however, and below is a list of some of the more common exclusions:

  • Gifts: Sums paid out occasionally, like a holiday bonus, and that are truly independent of an employee’s hours worked or production are not included in the regular rate of pay calculation in California.
  • Reimbursements: Sums paid to reimburse an employee for reasonable business expenses incurred, like a portion of a personal cellphone or home internet plan, are generally not included in the regular rate of pay calculation provided the reimbursement or stipend is separately allocated and for reimbursement purposes. Simply increasing an employee’s hourly rate to offset certain business expenses incurred, perhaps related to a work-from-home environment, may create issues if excluded.
  • Benefit Contributions: Sums paid by an employer for benefit plans, such as health insurance or retirement plans, are generally not considered in the regular rate of pay calculation as these contributions are not considered wages, provided the plan meets certain requirements.

Ensuring that the regular rate of pay calculation is being done correctly is imperative to ensure that employees are being properly compensated. Getting this wrong potentially opens California employers to possible liability far greater than the underpayment itself, which may be very minimal on any given paycheck, especially when little overtime is accrued. The reason is that the regular rate of pay calculation does not only impact overtime rates, but is also the calculation used to determine the proper amount for payment of meal and rest break premiums, as reported in CDF Labor Law LLP’s prior blog post [callaborlaw.com], and possibly other forms of remuneration such as sick leave and PTO.

Getting the regular rate calculation slightly wrong can create havoc.  It might result in an underpayment for employees across the company, which can often trigger other penalties such as wage statement violations or multiple waiting time penalties.  These penalties are mandatory and generally far exceed any actual underpayments. Moreover, because these mistakes are often not isolated to individual employees, a failure to include a requisite sum in the regular rate of pay calculation generally applies to a number of employees, making such claims subject to costly and time consuming representative class or California PAGA actions. In the last few years, WHDI has seen many California PAGA actions based on failure to properly calculate the regular rate of pay.  California employers should review their current pay practices to ensure this calculation is being computed properly. 

California Civil Rights Department Permits Deferrals For Reporting Labor Contractor Employee Pay Data

Recently enacted California law requires private employers of 100 or more employees and/or 100 or more workers hired through labor contractors to annually report pay, demographic, and other workforce data to the Civil Rights Department (CRD) next month, on May 10.

On April 14, 2023, the CRD updated its FAQs [calcivilrights.ca.gov] to permit employers to request a deferral on reporting the pay data for Labor Contractor Employee Reports. The key takeaways for employers required to file Labor Contractor Employee Reports are:

  • Labor Contractor Employee Reports must be submitted through the portal by May 10, 2023.
  • Employers that are not able to timely submit their Labor Contractor Employee Reports can file “enforcement deferral requests.” 
  • Once the deferral request is granted, the CRD will defer seeking an order of compliance for the employer to file its Labor Contractor Employee Report through July 10, 2023.  
  • The deferral request can be filed at any time from April 18, 2023 to May 10, 2023.
  • The deferral request must be filed through the pay data reporting portal and can only be filed by the employer registered in the portal.
  • Deferrals are only for the Labor Contractor Employee Reports, reports for regular employees are still due on May 10, 2023.

Because the CRD can seek an enforcement order and penalties of up to $100 per employee for initial violations for failure to file the report, an employer should seek a deferral if it will be unable to timely file its California Labor Contractor Report by May 10. 

Ninth Circuit Strikes Down California’s Law Outlawing Mandatory Arbitration Agreements

On February 15, 2023, the United States Court of Appeals for the Ninth Circuit issued its decision in Chamber of Commerce of the United States of America, et al. v. Bonta, et al. In this decision, the Ninth Circuit found California Assembly Bill 51 (AB 51) to be preempted by the Federal Arbitration Act (FAA), and therefore, unenforceable against California employers. This decision reaffirms the right of employers to require a properly-drafted arbitration agreement as a condition of employment, and/or continue to use or update existing arbitration programs.


In 2019, California Governor Gavin Newsom signed AB 51 into law. AB 51 represented the latest in a series of attempts by the California legislature to prevent employers from requiring employees to sign agreements to arbitrate employment claims. 

California’s legislature was well aware that federal policy favored arbitration, and aware of legal precedent holding that attempts to curtail arbitration might be preempted by the FAA. In drafting AB 51, the legislature tried to avoid preemption by focusing the new law on the formation of mandatory arbitration agreements, and not on the enforceability of signed agreements.  Specifically, AB 51 declared it an unlawful employment practice for an employer to require employees to waive their rights to litigate their claims in court – a fundamental requirement of any arbitration agreement. It provided for civil and criminal liability for employers who violated the law. However, AB 51 did not affect the enforceability of existing agreements to arbitrate.

AB 51 was immediately challenged by the business community based on FAA preemption. The United States and California Chambers of Commerce, along with other business organizations, sued California Attorney General Rob Bonta to prevent the enforcement of AB 51. On December 30, 2019, two days before AB 51 was to become effective, a California District Court agreed, and struck the law down. In September 2021, a three-judge panel of the Ninth Circuit, by a 2-1 vote, issued an unexpected ruling, concluding that most provisions of AB 51 did not conflict with the FAA, and could therefore be enforced. 

The business community plaintiffs asked for a rehearing by the entire Ninth Circuit. In June, 2022, while this rehearing request was pending, the United States Supreme Court issued a decision in another case involving arbitration agreements in California, Viking River Cruises, Inc. v. Moriana. In Viking River, the Supreme Court held that employees could be required to arbitrate, on an individual basis, claims for wage and hour related civil penalties under California’s Private Attorneys General Act. The Supreme Court emphasized the strong federal policy supporting the use of arbitration agreements and the expansive nature of FAA preemption, which applies to any state law inhibiting the use of arbitration agreements.

After Viking River, the original Ninth Circuit panel vacated its decision and agreed to rehear the case. On February 15, 2023, the Ninth Circuit panel, again by a 2-1 vote, affirmed the District Court’s decision and found that AB 51 conflicts with the purposes and objectives of the FAA. The panel rejected the State of California’s contention that AB 51 avoided FAA preemption by focusing on contract formation rather than contract enforcement, concluding that the distinction makes no difference – the effect of the law is to disfavor the use of arbitration agreements, contrary to federal law and policy. Therefore, the Court upheld the District Court’s order preventing enforcement of AB 51.

Implications for Employers

This is a major victory for California employers who use or wish to adopt mandatory arbitration programs. Due to the uncertainty around AB 51, some employers with existing programs were reluctant to require new employees to sign agreements or to modify existing agreements with employees. With this ruling, it is clear – at least for the time being – that employers may require employees to agree to arbitration as a condition of employment. As before, any mandatory arbitration agreement must comply with existing requirements in California. These requirements include, among other things, that the employer pay for costs of the arbitration that exceed the filing fee for civil actions; the agreement must be mutual and not impose shorter statutes of limitations or restrictions on available damages; and it must allow for reasonable discovery and for the recovery of costs and attorney’s fees in accordance with applicable law.

It is also clear that employers are free to require current employees to agree to modifications in existing agreements. This may be important for employers who want to ensure that class and representative claims for wage and hour violations are limited to individual claims in arbitration in light of the Viking River decision, or employers who want to make changes to ensure the enforceability of their arbitration agreements.

What May Come Next

The Ninth Circuit’s decision may not be the final word on the issue. It is likely the State of California will request rehearing by the entire Ninth Circuit. It is also likely, whether or not rehearing is granted, that the losing party will ask the United States Supreme Court to review the case. Given past Supreme Court decisions, the prospects are good that the latest Ninth Circuit decision will be upheld.  

In addition, there have been efforts in Congress to limit the scope of FAA preemption or to ban mandatory, pre-dispute arbitration agreements. One such effort resulted in the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which took effect in March, 2022. This new federal law, while not prohibiting or invalidating arbitration agreements, provides claimants bringing claims of sexual harassment or sexual assault the right to proceed in court even if they previously agreed to arbitrate such claims. Despite these uncertainties and limitations, arbitration agreements remain a viable alternative for Golden State employers.


As of January 1, 2023, California’s minimum wage increased to $15.50 per hour, regardless of the size of the workforce.
Here’s a checklist of some important workplace issues that the California minimum wage increase affects:

  1. Update Posters: California employers should make sure their workplace posters are up-to-date and reflect the correct minimum wage requirements.
  2. Exempt Position Salary Requirements: Under federal and state law, employees who meet certain exemptions (i.e., executive, administrative, or professional) are exempt from minimum wage and overtime requirements if they meet the applicable exemption tests. The threshold minimum salary requirement for exempt employees in California is at least two times the state minimum wage. This salary test is much higher than the FLSA. As such, with the new state minimum wage, effective January 1, 2023, the minimum salary for a California employee classified as exempt under the executive, administrative, or professional category, is $64,480.00. If you have exempt employees in California making a salary less than $64,480.00 annually, there is a good chance they are not properly classified as exempt.
  3. Local Minimum Wage Ordinances: There are a multitude of local ordinances in California that require employers to pay more than the state minimum wage to non-exempt employees, as well as industry-specific requirements in certain jurisdictions. Many of these ordinances update and become effective annually on January 1 or on July 1. Employers should check the current local minimum wages in California and set a reminder to check for mid-year updates to ensure compliance. This is particularly important given the increase in remote work environments where an employee’s work location may no longer be in-office and instead, located within a city or county that has a local ordinance that requires an hourly rate higher than California’s minimum wage.
  4. Location, Location, Location: California has one of the highest minimum wages in the country. Many cities in the bay area have local minimum wages that are currently over $16 an hour. Some are over $17 an hour. These minimum wages apply to all employees working the state/jurisdiction. With remote work becoming so popular, even for hourly workers, it is very important to know where your employees are performing their work. Often, employers of remote workers are completely unaware of where the work is being performed. If you have an exempt employee who was making a salary of $55,000 and moves to California to complete his work, or even works there temporarily, the employee is likely no longer properly classified as exempt. Hourly employees must be paid the higher of the California and the local minimum wage. If you have remote workers, it is very important to know exactly where they are working from or you could be stuck with a problematic wage and hour claim or lawsuit down the road.
  5. Do Not Rely on Your Payroll Company: California employers should remain vigilant about compliance without relying blindly on an outside payroll company to avoid wage and hour pitfalls that result in costly litigation, that employers typically bear alone. There are specific nuances of potentially overlapping regulations and realities of today’s remote or hybrid work environments and the payroll companies, even the larger ones, rarely keep up with everything, including local minimum wages and often fail to make the adjustments or notify the employer when the law changes/wage goes up. Most of the agreements that employers sign with payroll companies, place the burden squarely on the employer when a mistake is made. Do not rely on others to ensure minimum wage compliance.

California Appellate Court Holds That Percentage Bonuses Can Be Calculated Using FLSA Method

In a pro-employer decision addressing the overlap of federal and California wage and hour law, the California Court of Appeal for the Second Appellate District upheld summary adjudication for the employer, finding that the employer’s calculation of overtime on a nondiscretionary bonus using the Fair Labor Standards Act’s (“FLSA”) calculation method set forth in 29 C.F.R. section 778.210 (“CFR 778.210”) was permissible, even though it resulted in less pay than the calculation method set forth in the California Division of Labor Standards Enforcement (“DLSE”) Manual.  

In Lemm v. Ecolab, Inc. [callaborlaw.com], the plaintiff sued his employer, Ecolab, under the California Private Attorneys General Act (“PAGA”), claiming that Ecolab improperly calculated the overtime due on a nondiscretionary bonus paid to him and all other similarly situated employees. The parties stipulated to have the trial court determine the overtime calculation issue based on cross-motions for summary adjudication.  

In this case, the plaintiff was employed as a nonexempt route sales manager who regularly worked more than 12 hours in a day and more than 40 hours in a week. He was paid hourly wages, including any applicable overtime and double-time wages, every two weeks. He was also eligible to receive a nondiscretionary, monthly bonus, which would be paid every four to six weeks. Eligibility for the bonus was governed by an Incentive Compensation Plan (the “Plan”). Under the Plan’s terms, eligibility for the bonus depended on meeting or exceeding certain targets. If eligible, the Plan provided for a bonus payment in the amount of 22.5 percent of the worker’s gross wages earned during the monthly bonus period. The percentage multiplier used to calculate the bonus amount could increase for workers who exceeded the eligibility targets (i.e., greater sales meant a percentage multiplier). 

As a result, the bonus payments, as a percentage of gross wages earned comprised of regular and overtime wages, necessarily included additional overtime compensation. That methodology is expressly provided for under federal law, specifically, CFR 778.210. (Sample calculations are provided in the Court of Appeal decision.)

In the summary adjudication motions, the plaintiff argued that under California law, nondiscretionary bonus payments must be incorporated into the regular rate of pay, which in turn would affect overtime calculations. The plaintiff argued that the formula set forth in section 49.2.4 of the DLSE Manual should be used instead of the calculation permitted in CFR 778.210 because the DLSE Manual’s method resulted in higher pay, and thus, as stated by the California Supreme Court in Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, the court must use the formula more favorable to California employees.

Ecolab argued that CFR 778.210 was the proper method of calculating the overtime due on the monthly bonus because that section applied to bonuses that are known as percentage bonuses, which are paid as a percentage of gross earnings that have already incorporated straight time, overtime, and double time wages for each bonus period. Thus, Ecolab argued, if the plaintiff’s method of calculation were to be used, it would result in the double counting of overtime, or “overtime on overtime.”

The trial court granted Ecolab’s summary adjudication motion and denied the plaintiff’s motion, finding that Alvarado’s holding was limited to flat sum attendance bonuses, not percentage bonuses like the one at issue in this case. (The bonus at issue in Alvarado was a pre-determined, flat sum, attendance bonus, which is significantly different than the variable, percentage of wages production bonus at issue here.) Thus, using the calculation permitted by CFR 778.210, in this case, was not at odds with the rationale of Alvarado or the DLSE Manual’s guidance on calculating flat sum bonuses. The trial court stated, “Ultimately, [Ecolab’s] position makes logical sense. Simply put, a requirement for an employer to pay overtime on a percentage bonus that already includes overtime pay makes the employer pay ‘overtime on overtime.’ This is not a requirement under the law. By paying a bonus based on a percentage of gross earnings that includes overtime payments the employer automatically pays overtime simultaneously on the bonus amount.”

The Court of Appeal agreed. While recognizing that overtime compensation in California was governed by both federal and state law and that federal law did not preempt state law in this area, the Court stated that federal cases may provide persuasive guidance because California wage and hour laws were modeled to some extent on federal law. Similar to this case, courts in the Ninth Circuit and California District Courts had previously upheld using the percentage of bonus calculation set forth in CFR 778.210 under federal and California law.  

The Court of Appeal also recognized the principle stated in Alvarado that while the DLSE Manual could be considered as a compilation of the DLSE’s expertise and competence, a court could adopt the DLSE Manual’s interpretation only if the court, through its exercise of independent judgment, determined that the DLSE Manual’s interpretation was correct based on the facts at issue in the particular case. The Court then determined that the calculation used in Alvarado and the DLSE Manual dealt with how to calculate an employee’s overtime pay rate when the employee has earned a flat sum bonus during a single pay period, not the type of percentage bonus at issue in this case.

The Court of Appeal recognized that Ecolab demonstrated that the plaintiff and alleged aggrieved persons would have been paid the same amount regardless of whether Ecolab used the DLSE Manual formula as applied to percentage bonuses or the CFR 778.210 formula, so long as the calculation first eliminated overtime on overtime. The Court determined that while as a general rule, courts must adopt the construction that favors the protection of employees, that general rule did not require courts to interpret state law to give an employee “overtime on overtime,” when such an interpretation would be inconsistent with the fundamental principles of overtime and would result in a windfall to employees.   This Court of Appeal decision emphasizes that California employers need not always follow the DLSE Manual’s guidance on calculating overtime on nondiscretionary bonuses if the guidance does not address the type of bonus at issue and does not make sense under the circumstances.

New California Case Calls Into Question the Viability of Any Time Rounding Practices in California 

Over the past decade, California employers have reasonably relied on consistent rulings from courts as well as state and federal administrative agencies upholding the validity of time rounding systems as long as they are neutral in application. However, in a sharp departure from these authorities, the Sixth District Court of Appeal recently ruled, in a decision certified for publication, that even a neutral rounding policy that, on average and in the aggregate, may slightly favor employees in terms of compensable time may present potential exposure for claims of unpaid wages, if a particular employee can demonstrate that the rounding policy disadvantaged him or her individually, and deprived the employee or some subset of employees of wages in any particular pay period.

In Camp v. Home Depot, 2022 WL 13874360 (Oct. 24, 2022), https://www.courts.ca.gov/opinions/documents/H049033.PDF Plaintiffs in a California putative class action challenged Home Depot’s time rounding policy that rounded employees’ time punches to the nearest quarter-hour and asserted that this policy deprived them of wages based on time actually worked. The trial court granted Home Depot’s summary judgment motion because the policy was both neutral on its face and as applied, based on See’s Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889 (2012) and its progeny.  

In connection with Home Depot’s summary judgment motion, the parties stipulated to an analysis of a 10% sample of time and pay records of the putative class (for 13,387 hourly employees, 4,282,517 shifts, and 516,193 pay periods) that showed, among other things:

  1. 56.5% of shifts resulted in employees receiving pay that was equal to or greater than their actual work time based on the rounding policy; while
  2. 43.4% of shifts resulted in employees losing minutes of work time due to rounding;
  3. for pay periods where work time resulted in additional minutes in favor of employees, the average gain was 11.3 minutes; while
  4. for pay periods where work time resulted in lost minutes to employees, the average loss was 10.4 minutes. In fact, one of the two named plaintiffs, Adriana Correa, conceded on appeal that she was overpaid and could not state a claim for unpaid wages. Plaintiff Delmer Camp, however, demonstrated that Home Depot’s rounding policy resulted in him losing 470 minutes due to rounding, or approximately 7.83 hours over the course of 1,240 shifts (approximately 4.5 years).  

The Court of Appeal reversed the trial court’s grant of summary judgment and concluded instead that a genuine issue of material fact existed as to whether Home Depot’s rounding policy resulted in Camp not being paid for all of the time that he worked. The Court reasoned that nothing in the Labor Code or applicable Wage Order specifically permitted rounding, and instead, both statutory sources required employees to be paid for “all time worked.” Moreover, recent decisions from the California Supreme Court confirmed that the underlying public policy of protecting employees required compensation of even de minimus work time (Troester v. Starbucks, 5 Cal.5th 829 (2018)) and prohibited the rounding of time associated with meal breaks (Donohue v. AMN Services, LLC, 11 Cal.5th 58 (2021)).  

Where Home Depot’s timekeeping system could and did capture work time to the minute, the California Court of Appeal was unpersuaded by Home Depot’s arguments that its rounding practice produced verifiable and digestible wage statements (or at least was unpersuaded this arithmetic simplicity outweighed the benefit of paying employees for time actually worked).

The Camp Court limited its holding to the facts of this case, and did not purport to prohibit all employer time rounding practices, or address situations where neutral rounding policies may be permissible due to the demonstrated inability to capture the actual minutes worked by employees. It also expressly declined to rule whether an employer who has the actual ability to capture all employee work minutes is always required to do so.  Nonetheless, this decision has the potential to be used to challenge any rounding practice in California. It is a sobering reminder to California employers that they should re-evaluate any rounding policies/practices and determine whether this decision presents new compliance considerations in their respective workplaces.  

WHDI’s California representatives are ready to assist with any issues you may have in the Golden State.

Inflation to Cause California Minimum Wage to Rise Higher Than Anticipated in 2023


On July 27, 2022, the Director of the California Department of Finance sent a letter to Governor Gavin Newsome and state legislative officials, notifying them that the high inflation rate over the last year will cause the state’s minimum hourly wage to rise higher than anticipated in January 2023.  The higher minimum wage will affect several categories of employees in addition to minimum-wage earners.

Background on California’s Minimum Wage Law  

Labor Code section 1182.12 established a series of annual increases to the state minimum wage, causing it to rise from the 2016 minimum wage of $10 per hour, to the 2022 minimum wage of $14 per hour for employers with 25 or fewer employees, and $15 per hour for employers with 26 or more employees.  Under subdivision (b) of that statute, in January 2023 the minimum wage for employers with 25 or fewer employees was scheduled to rise to $15 per hour, with no increase in the minimum wage for employers with 26 or more employees, meaning employers of all sizes would then be subject to a uniform minimum wage of $15 per hour.

Other provisions of the statute provide for further annual increases.  Specifically, subdivision (c)(1) of the statute requires the Director of Finance, beginning in 2023, to calculate an adjusted minimum wage on or before August 1 of each year based on the United States Bureau of Labor Statistics nonseasonally adjusted United States Consumer Price Index for Urban Wage Earners and Clerical Workers (U.S. CPI-W).  The Director is to calculate the increase in the minimum wage by the lesser of 3.5 percent or the rate of change for the U.S. CPI-W, and the result is then rounded to the nearest ten cents, with the adjusted minimum wage increase implemented on the following January 1, beginning in 2024.

However, subdivision (c)(3) provides that if the inflation rate exceeds seven percent in the first year in which the minimum wage for employers with 26 or more employees is $15 per hour (which is this year), the annual increases based on the U.S. CPI-W are to begin a year earlier—in January 2023.

The Department of Finance’s Determination of the 2023 California Minimum Wage

In her letter of July 27, 2022, California Department of Finance Director Keely Martin Bosler announced that the Department had determined the U.S. CPI-W for the 12-month period from July 1, 2021 through June 20, 2022 increased by 7.9 percent compared to the preceding 12-month period and, as a result, the inflation-adjusted annual increases required by the minimum wage statute would begin on January 1, 2023.  The Department calculated that the required 3.5 increase will result in a state minimum wage of $15.50 per hour for all employers beginning January 1, 2023, fifty cents higher than the previously anticipated minimum wage of $15.00 per hour.

Ripple Effect of a Higher Minimum Wage  

Any increase in the state minimum wage has a ripple effect on several categories of California employees in addition to minimum-wage earners.

California’s salary threshold for “white collar” (executive, administrative, and professional) exempt employees is set at twice the state minimum wage for a 40-hour work week.  A $15.00 minimum wage would have established a salary threshold of $62,400 per year ($15 x 2 x 40 hrs x 52 wks).  A $15.50 minimum wage will establish a salary threshold of $64,480 per year ($15.50 x 2 x 40 hrs x 52 wks).

California’s overtime exemption for commissioned employees (sometimes referred to as the “inside sales” exemption) applies to employees whose earnings exceed 1.5 times the state minimum wage if more than half the employee’s compensation represents commissions.  In order to maintain the exemption for those employees, beginning in January 2023 they must earn at least $23.25 per hour, in addition to earning more than half their compensation from commissions.

As a general rule, when tools or equipment are required for a job, the employer must provide and maintain them.  However, a California employee whose wages are at least twice the state minimum wage may be required to provide and maintain hand tools and equipment customarily required by the trade or craft.  Beginning in January 2023, those employees must be paid at least $31.00 per hour.


California Employers should begin planning for the higher minimum wage, and budget for this unexpected expense.  Employers should also keep in mind that a host of local governments throughout California have their own minimum wage ordinances that often require minimum wages higher than the state minimum, and some local governments may take steps to increase their own minimum wages in response to the higher than anticipated increase in the state minimum wage.

Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA

US Supreme Court Expands Protections for Public Employees’ Religious Expression

On Monday, the United States Supreme Court issued its decision in Kennedy v. Bremerton School District.  In a 6-3 decision, the Supreme Court ruled that the Free Speech and Free Exercise clauses of the First Amendment to the United States Constitution protect a public school football coach’s right to lead a post-game, mid-field prayer.  According to the Supreme Court, the prayers offered by the coach were a form of private religious observance, which the employer had no authority to censor. 

Background of Kennedy v. Bremerton School District

Joseph Kennedy was a high school football coach employed by the Bremerton School District (the “District”).  After football games, Kennedy made it a practice to kneel and offer prayer at midfield with anyone who chose to participate.  The District directed Kennedy to cease this practice, on the theory that students might feel obligated to participate, and the District wished to avoid a perception of religious endorsement.  Kennedy continued the practice, and the District terminated his employment.  Kennedy filed suit under the Free Speech and Free Exercise clauses of the First Amendment.  Siding with the District, both the trial court and Ninth Circuit determined that the District maintained a compelling interest in prohibiting the prayers because allowing them to continue could violate the First Amendment’s Establishment Clause, which prohibits government endorsement or hostility towards any religion.  The lower courts concluded that allowing Kennedy’s prayers to continue could be seen as preference towards his religion.

The Supreme Court disagreed.  It concluded Kennedy’s post-game prayers were not “ordinarily within the scope of his duties as a coach,” and the “object” of the District’s decision was to prohibit a religious practice by a “private citizen.”  Prior to Kennedy, courts applied the three-prong test established in 1971 in Lemon v. Kurtzman, to determine whether a government activity or law violated the Establishment Clause. The Supreme Court, however, shifted away from over fifty years of jurisprudence by abandoning the Lemon test and adopting a new framework requiring courts to generally consider “reference to historical practices and understandings.”  The Supreme Court ultimately concluded that Kennedy satisfied his burden under the First Amendment by showing that the District “burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’”  Therefore, the Supreme Court determined, the District violated Kennedy’s First Amendment rights by impermissibly regulating his speech and restricting his religious practice.

What This Means

The Supreme Court’s Kennedy decision could have a broad impact on public entities.  It requires public employers to place a higher emphasis on employees’ right to religious expression when making employment decisions involving potentially protected religious activity and ultimately expands employees’ recognized First Amendment rights in the workplace.

It is too early to tell how lower courts will apply the Supreme Court’s new historical reference framework under the Establishment Clause.  With greater protections now afforded employees under the First Amendment, employment decisions in the future, particularly for public employers, will be difficult and complicated.  Employers are encouraged to consult with counsel before making employment decisions that involve religious practice implications.


Anissa Elhaiesahar (USD School of Law, Class of 2023)
Matthew Mushamel
Fred Plevin

California Court of Appeal Holds No Right to Jury Trial in PAGA Cases and Affirms Suitable Seating Win for Employer

On February 18, 2022, the California Court of Appeal, Second District, held there is no right to a jury trial in a Private Attorneys General Act (PAGA)  action for civil penalties.  In that same decision the Court of Appeal affirmed a trial court’s judgment in favor of Ralphs Grocery Company after a bench trial in which the trial court found the company’s decision not to provide seats to cashiers did not violate workplace suitable seating requirements under the applicable Industrial Wage Commission (IWC) wage order.

Background on PAGA

Under PAGA, the State of California deputizes “aggrieved employees” to sue employers to recover civil penalties as a mechanism to enforce provisions of the Labor Code.   An aggrieved employee is a person who was employed by the defendant employer and against whom one or more of the alleged Labor Code violations occurred.   Under PAGA, the plaintiff-employee pursues civil penalties for Labor Code violations the employer allegedly committed against all aggrieved employees (not just the plaintiff).   The employee who brings a PAGA action acts as an agent of the state enforcement agencies; therefore the action is considered a dispute between the employer and the state, as opposed to a suit for damages.   If the employee prevails in the litigation, 75 percent of the civil penalties go to the state, and the remaining 25 percent go to the aggrieved employees.   Prevailing PAGA plaintiffs are also entitled to recover reasonable attorneys’ fees and costs.

California’s “Suitable Seating” Requirements

For decades, California’s IWC wage orders have required most employers to provide “suitable seats” to their employees “when the nature of the work reasonably permits the use of seats.”   When the nature of employees’ work requires standing and the employees are not actively engaged in those duties, the wage orders require employers to provide their employees seats when using seats “does not interfere with the performance of their duties.” 

These “suitable seating” requirements were little noticed until after the enactment of PAGA in 2004.  Although the suitable seating requirement does not appear within the Labor Code itself, section 1198 of the Labor Code makes it unlawful to employ any employee under conditions prohibited by an IWC wage order. The result is that a violation of any IWC wage order is also a violation of Section 1198, which gives rise to a PAGA claim. Under PAGA, the civil penalty for a violation of Section 1198 is $100 for each aggrieved employee per pay period for the initial violation, and $200 for each aggrieved employee per pay period for each subsequent violation.  It doesn’t require a calculator to see how PAGA provided the financial incentive behind the explosive growth of suitable seating litigation.

LaFace v. Ralphs Grocery Co.

Ralphs Grocery Company employed Jill LaFace as a cashier.   She brought a PAGA action against Ralphs on behalf of herself and other current and former Ralphs cashiers, alleging Ralphs violated an IWC wage order requiring the company to provide suitable seating when the nature of the work reasonably permitted the use of seats, or, for a job where standing was required, to provide seating for employees to use when their use did not interfere with their duties.

The trial court set a jury trial but later granted Ralphs’s motion for a bench trial after finding PAGA actions are equitable in nature and are therefore not triable to a jury.   After a bench trial the trial court found Ralphs had not violated the wage order because the evidence showed even when cashiers were not functioning in their primary roles as cashiers, they were required to move about the store fulfilling other tasks.   LaFace appealed the judgment, contending she was entitled to a jury trial on her PAGA claim.

On appeal, LaFace and Ralphs agreed that PAGA itself does not confer a right to a jury trial, so the Court of Appeal limited its inquiry to whether the California Constitution’s guarantee of a right to a jury trial applies to PAGA actions.   Surveying the line of cases examining the reach of the state constitutional right to a jury trial, the Court of Appeal determined the issue turned on whether a PAGA action is of “like nature” or “of the same class as a pre-1850 common law right of action” that the constitutional provision was designed to protect.

Examining the nature of a PAGA action, the Court of Appeal concluded there is no right to a jury trial in PAGA actions for four reasons.  First, notwithstanding the fact that a PAGA action’s designated forum is the trial courts which technically makes it a civil action, PAGA plaintiffs act as mere proxies for the state, bringing on behalf of the state what would otherwise be an administrative regulatory enforcement action.   Second, PAGA’s penalty provisions are subject to a variety of equitable factors that call for a qualitative evaluation and the weighing of a variety of factors that is typically undertaken by a court, not a jury.   Third, the Labor Code proscribes a wide range of conduct that was unknown at common law, including suitable seating requirements among others.   Fourth, although the penalty assessment portion of a PAGA action could be severed from the liability portion, with a jury deciding liability and the court deciding penalties, as noted above many PAGA violations are based on newly created rights that did not exist at common law, with the result that a PAGA action typically does not have a pre-1850 analog that would call for the right to a jury trial under the California Constitution.

After addressing the constitutional issue, the Court of Appeal next turned to the merits of LaFace’s suitable seating claim.  On appeal, LaFace did not argue the nature of her cashier duties reasonably permitted the use of seats; her appeal was limited to her contention that she was entitled to a seat during the brief periods of time when she was on the clock but not checking out customers.  LaFace and Ralphs generally agreed the evidence, including the testimony of longtime cashiers and expert witnesses, showed that when cashiers were not checking out customers, Ralphs expected them to be performing other tasks that required standing, to include cleaning, restocking, and looking for customers ready to check out.  

The parties disagreed, however, whether Ralphs’s expectation about these secondary tasks required Ralphs to provide seats.   LaFace contended that notwithstanding Ralphs’ expectation that cashiers would perform these secondary tasks when they were not checking out customers, the “reality” was that cashiers would often remain at their checkstands, talking to other employees or using their mobile phones.   Ralphs argued that because cashiers were expected to be active and busy at all times, no seating was required, and “rogue employees” should not be able to create an entitlement to seats by shirking their job duties. The Court of Appeal sided with Ralphs and affirmed the trial court’s judgment, holding an objective inquiry into whether using a seat would interfere with an employee’s performance of job duties properly takes into account an employer’s reasonable expectations regarding customer service and acknowledges an employer’s role in setting job duties.   “An expectation that employees work while on the clock, rather than look at their phones or do nothing, seems objectively reasonable.”


While the bulk of suitable seating litigation has been brought by cashiers and other customer service employees who deal directly with the public, any California employer can be the target of a suitable seating claim.  Employers are therefore well advised to periodically review job duties and provide suitable seats where warranted.  When an employer concludes a seat is not warranted by an employee’s job duties, those duties should be clearly defined to make it clear an employee should not be sitting while on the clock.

Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA