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’S MINIMUM WAGE GOES UP – THE RAMIFICATIONS ARE BROADER THAN JUST THE HOURLY WAGE
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:
- Update Posters: California employers should make sure their workplace posters are up-to-date and reflect the correct minimum wage requirements.
- 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.
- 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.
- 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.
- 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:
- 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
- 43.4% of shifts resulted in employees losing minutes of work time due to rounding;
- for pay periods where work time resulted in additional minutes in favor of employees, the average gain was 11.3 minutes; while
- 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.
New California Law Classifies Intentional Wage Theft as a Felony
On September 27, 2021, Governor Gavin Newsom signed Assembly Bill No. 1003 (“AB 1003”) into law, adding Section 487m to the California Penal Code, which creates a new type of felony for intentional “wage theft.” The law takes effect on January 1, 2022.
While theft is commonly thought of as an intentional crime, the California Labor Commissioner defines “wage theft” much more broadly, to include not only egregious intentional conduct such as forcing employees to work off-the-clock, but also violations that might result from simple mistakes, such as failing to pay reporting time pay or failing to correctly calculate the overtime due on a commission.
The California Labor Code attempts to discourage wage theft by imposing criminal penalties on employers that violate provisions regulating payment of wages. Running afoul of dozens of the most commonly-violated wage provisions of the Labor Code may result in a misdemeanor offense, including provisions such as:
- Labor Code section 204, which requires timely payment of wages twice a month;
- Labor Code section 206.5, which prohibits releasing claims for unpaid wages unless payment of the wages has been made;
- Labor Code section 207, which requires employers place employees on notice of regular pay days and the time and place of payment;
- Labor Code section 216, which prohibits employers from failing to pay wages owed to an employee or falsely denying the amount due after the employee has made a demand for payment; and
- Labor Code section 226.6, which requires employers provide accurate itemized wage statements to employees.
While Labor Code wage theft statutes classify violations as misdemeanors, the new law goes one step further by creating a new felony offense under the Penal Code. Specifically, under the new law, the intentional theft of employee wages in an amount greater than $950 from a single employee or $2,350 from two or more employees within a consecutive twelve-month period is considered “grand theft” under California Penal Code section 487m. Importantly, the theft must be intentional to be actionable. Accordingly, inadvertent mistakes or errors are not contemplated by the new code section. Of note, the law also classifies independent contractors as “employees” for purposes of the offense, and includes individuals or entities hiring independent contractors as “employers.”
Employers (and entities that engage independent contractors) that violate the new law risk serious consequences. Prosecutors have the authority to charge those responsible for intentional wage theft violations with a misdemeanor or felony, either of which may be punishable by imprisonment (up to one year for a misdemeanor, and 16 months, or 2 or 3 years for a felony), a specified fine, or both a fine and imprisonment.
AB 1003 is a notable escalation in efforts to classify disputes over wages as serious criminal conduct. The author of the bill, Assemblywoman Lorena Gonzales, confirmed the intent of AB 1003 was to send a clear message to employers that intentionally stealing wages from employees is criminal and can result in imprisonment.
It is not yet clear how “intentional wage theft” will be interpreted and applied under the new law once it goes into effect next year. Employers should remain vigilant about compliance with wage and hour laws by regularly reviewing and updating their compensation policies and practices for employees and independent contractors, and making adjustments where needed. Employers should also take steps to ensure that hourly employees and managers are appropriately trained on wage and hour compliance and appropriately disciplined for violations.
California Supreme Court Rules Unpaid Wages Not Recoverable Under PAGA Law
Today the California Supreme Court ruled that employees cannot recover unpaid wages in actions brought under the California Labor Code Private Attorneys General Act (PAGA). As a result of today’s decision, unpaid wages can only be recovered in actions brought under other Labor Code provisions that, unlike PAGA, can be subjected to mandatory employment arbitration agreements, including agreements that require employees to waive the right to bring claims on a class or collective basis.
Since 2004, the PAGA law has allowed employees to act as “private attorneys general” by bringing claims in court to recover “civil penalties” for violations of California Labor Code provisions. PAGA allows employees to bring claims on behalf of themselves and on behalf of other “aggrieved employees.” Before PAGA took effect, these “civil penalties” were recoverable only by the state’s labor law enforcement agencies.
In the fifteen years since the PAGA law took effect, the United States Supreme Court has issued a series of decisions upholding the enforcement of arbitration agreements, including agreements between employers and employees. The U.S. Supreme Court has also repeatedly held that employment arbitration agreements may include provisions prohibiting employees from arbitrating claims on a class or collective basis, effectively requiring employees to arbitrate only individual claims. As a result of these court decisions, many employers now encourage or require their employees to enter into arbitration agreements that include class and collective action waivers.
However, in 2014 the California Supreme Court ruled that employment arbitration agreements cannot prohibit employees from bringing PAGA claims in court on behalf of themselves and other “aggrieved employees.” As a result, even where an employee subject to an employment arbitration agreement is barred from bringing claims on a class or collective basis in court or in arbitration, the employee may still bring a “PAGA-only” claim in court, forcing the employer to litigate claims for alleged violations affecting not only the plaintiff-employee, but other “aggrieved employees” as well.
Most of the Labor Code provisions providing for civil penalties recoverable under the PAGA law assess penalty amounts (typically $50 or $100) for each aggrieved employee affected by the violation, for each pay period in which a violation occurs. But Labor Code section 558, which provides for civil penalties when an employer violates provisions of the Labor Code requiring employers to provide meal periods and overtime pay, is different. Section 558 provides for a civil penalty of $50 for each underpaid employee for each pay period in which the employee was underpaid for an initial violation, and $100 for each under paid employee for each pay period in which the employee was underpaid for a subsequent violation, “in addition to an amount sufficient to recover underpaid wages.”
In recent years different districts of the California Court of Appeal have reached different conclusions about how to interpret Section 558’s language, with one district concluding that claims for underpaid wages under Section 558 are subject to arbitration, and other districts concluding they are not. Despite their disagreements, however, all districts agreed that under the language of Section 558, the “underpaid wages” sought under Section 558 are part of a “civil penalty” recoverable under the PAGA law.
But today the California Supreme Court reached a different conclusion, confirming that the $50/$100 for each underpaid employee for each pay period is a civil penalty recoverable under the PAGA law, but holding that an employee’s underpaid wages are not part of that civil penalty, and are therefore not recoverable under the PAGA law.
As a result of today’s decision, plaintiff-employees cannot recover unpaid wages in PAGA-only cases. Although employees may bring claims for unpaid wages under other, non-PAGA Labor Code provisions, those non-PAGA claims are subject to employment arbitration agreements that may require employees to arbitrate claims on an individual basis only.
This means employment arbitration agreements that include class and collective action waivers now provide more protection to employers than they did before today’s decision. Employers that already make use of arbitration agreements should consult with counsel about whether their existing agreements are sufficient, or should be revised. Employers that do not have arbitration agreements with their employees should consult with counsel about whether to adopt an arbitration program.
Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA
California Court Rules Employers That Require Employees to Call in Before Scheduled Shifts Must Pay Them
On February 4, 2019, the California Court of Appeal held employers that require employees to call in to work two hours before scheduled “on-call” shifts to find out whether they need to report to work trigger California’s “reporting time” pay requirements.
Clothing retailer Tilly’s, Inc. scheduled its retail store employees to work both regular and “on-call” shifts. Employees were required to call their stores two hours before the start of their on-call shifts to determine whether they were needed to work those shifts. Tilly’s told its employees to consider on-call shifts as “a definite thing” unless they were advised they did not need to come in to work.
A former Tilly’s employee filed a putative class action alleging Tilly’s owed her and other employees reporting time pay for on-call shifts. The employee’s argument was based on Wage Order No. 7-2001, which applies to the retail industry. That wage order requires employers to pay “reporting time pay” to employees for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.” The reporting time pay requirement is “half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours.”
The trial court ruled in favor of Tilly’s, holding that calling in to ask whether to report for work did not constitute “reporting for work.” But on Monday the Court of Appeal reversed, concluding that requiring employees to call in to work two hours before scheduled on-call shifts falls within the definition of “reporting to work” and therefore triggers the reporting time pay provisions. Under this holding, the employer would be required to pay the employee for at least half of the on-call shift (up to four hours), even if the employee did not work that amount of time.
The Court reasoned that by scheduling employees for on-call shifts and not informing them whether they would be required to work until two hours before those shifts, Tilly’s effectively deprived the employees of the ability to schedule other work or make plans for personal activities, and this was “precisely the kind of abuse that reporting time pay was designed to discourage.”
Although this decision was limited to Wage Order No. 7-2001, which governs retail employees, similar reporting time pay provisions are found in other wage orders. California employers who need employees to be on call should examine their practices. The critical element in this case was Tilly’s practice of requiring all on-call employees to call in prior to their shifts, which the court held was effectively requiring the employees to report to work. If Tilly’s did not require such an effort from its employees, but instead only called off the employees that it determined were not needed to work, the court’s result may well have been different. Accordingly, if a California employer needs to have employees on call, but does not want to pay reporting time pay, it should not require any pre-shift action by employees, but instead should have supervisors contact only those employees who are not required to come to work.
Aaron Buckley
Paul, Plevin, Sullivan & Connaughton LLP
California Supreme Court Holds Federal De Minimis Rule Not a Defense to Wage Claims Brought Under California Law
Yesterday, the California Supreme Court ruled that the de minimis rule found in the federal Fair Labor Standards Act (FLSA) does not apply to wage claims brought under California state law. The court thus rejected an attempt by Starbucks to invoke the rule as a defense to an employee’s claim that he was routinely required to work off-the-clock for a few minutes each day.
Background on the De Minimis Rule
Under the FLSA, employers are generally required to pay at least the federal minimum wage for all ‘‘hours worked.’’ California’s Industrial Welfare Commission (IWC) wage orders include similar requirements, which generally define ‘‘hours worked’’ more broadly as ‘‘the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.’’
But federal courts have long recognized an exception to the general rule requiring pay for all hours worked. Under the de minimis rule, employees generally cannot recover for otherwise compensable time if it amounts to only a few seconds or minutes of work beyond scheduled working hours. To determine whether work time is de minimis, courts consider: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work. Applying these standards, numerous courts have held that daily periods of up to 10 minutes are de minimis under federal law and thus not compensable.
Troester v. Starbucks Corporation
As a shift supervisor for Starbucks, Douglas Troester was responsible for performing certain tasks at the end of the business day after clocking out, including transmitting sales data to Starbucks headquarters and setting the store alarm. These closing activities generally totaled fewer than four minutes, and they nearly always took fewer than 10 minutes.
After his termination, Troester sued Starbucks for unpaid wages under California law. The federal district court granted Starbucks’s motion for summary judgment based on the de minimis rule. Troester appealed.
The Ninth Circuit Court of Appeals, finding no opinion by the California Supreme Court applying the de minimis rule to California wage claims, asked the California Supreme Court whether the rule applied under California state law. Yesterday the California Supreme Court found that it did not.
In its decision, the court noted that although the de minimis rule has been part of federal law for 70 years, neither the Labor Code nor the wage orders have been amended to recognize a de minimis exception. Only one published California Court of Appeal decision has applied the de minimis rule, and it found that the rule did not apply to the case before it. And although the California Division of Labor Standards Enforcement (DLSE) has for some time identified the de minimis rule as defense to claims for small amounts of unpaid time in its Enforcement Policies and Interpretations Manual and a handful of opinion letters, neither is binding, and the court found no intent to incorporate the rule into California law.
The court also noted practical considerations undermining the application of the de minimis rule in California wage actions. The rule was first adopted by federal courts decades ago when it was more difficult to track small amounts of time. With the technology available today, the court concluded that capturing all employee work time is considerably less difficult.
Although the court rejected the FLSA de minimis rule as a defense to state-law wage claims, the court did not decide whether a general de minimis principle may ever apply to wage and hour claims under state law. The court made it clear that no such principle applied in the case before it, because Starbucks was aware that Troester and other supervisors worked a few minutes off the clock every time they closed a store. But the court gave no examples of where a general de minimis principle might apply in future cases.
What This Means For Employers
Yesterday’s decision makes it clear that the FLSA de minimis rule is no defense to claims for small amounts of unpaid time under California law. Employers with nonexempt employees in California should enact and enforce policies and practices designed record every minute of every employee’s working time, and to pay employees for every minute worked.
Aaron Buckley
Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA
New California Law Makes Contractors Liable for Subcontractors’ Unpaid Wages
On October 14, 2017, California Governor Jerry Brown signed into law Assembly Bill 1701, which will make general contractors on private construction projects liable for their subcontractors’ failure to pay wages due to the subcontractors’ employees. The new law applies to contracts entered into on or after January 1, 2018.
Assembly Bill 1701 adds Section 218.7 to the California Labor Code. Subdivision (a)(1) provides:
For contracts entered into on or after January 1, 2018, a direct contractor making or taking a contract in the state for the erection, construction, alteration, or repair of a building, structure, or other private work, shall assume, and is liable for, any debt owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the contract between the direct contractor and the owner.
The direct contractor’s liability under Section 218.7 will extend only to any unpaid wages, fringe or other benefit payments or contributions, including interest, but will not extend to penalties or liquidated damages.
Employees will not have standing to enforce the new law. Only the California Labor Commissioner, a third party owed fringe or other benefit payments or contributions on a wage claimant’s behalf (such as a union trust fund), or a joint labor-management cooperation committee may bring a civil action against a direct contractor for the unpaid wages. A joint labor-management committee must provide the direct contractor with at least 30 days’ notice by first-class mail before filing the action.
A prevailing plaintiff in any such action is entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees. The property of a direct contractor that has a judgment entered against it may be attached to satisfy the judgment.
The new law authorizes a direct contractor to request from its subcontractors their employees’ wage statements and payroll records required to be maintained under Labor Code section 1174. The payroll records must contain information “sufficient to apprise the requesting party of the subcontractor’s payment status in making fringe or other benefit payments or contributions to a third party on the employee’s behalf.” Direct contractors and subcontractors also have the right to request from any lower tier subcontractors “award information that includes the project name, name and address of the subcontractor, contractor with whom the subcontractor is under contract, anticipated start date, duration, and estimated journeymen and apprentice hours, and contact information for its subcontractors on the project.” A direct contractor may withhold as “disputed” all sums owed if a subcontractor does not timely provide the requested information, until such time as that information is provided.
Given this new law, general contractors operating in California should be even more careful than before about the subcontractors they hire, and pay particular attention to the subcontractors’ ability and willingness to comply with all applicable wage and hour laws. This includes requirements to provide timely meal and rest periods, because meal and rest period premiums qualify as wages. General contractors should also ensure their subcontractor agreements require the subcontractors to indemnify the general contractor for any liability arising from the new law. Once a project is underway, general contractors should closely monitor their subcontractors’ compliance with wage and hour laws and fringe benefit payments, and where necessary exercise their right to request payroll records from subcontractors to ensure they are timely paying all required wages and fringe benefits.
Aaron Buckley
Paul, Plevin, Sullivan & Connaughton LLP
San Diego, CA
California Governor Jerry Brown Signs $15 Minimum Wage Bill
Today Governor Jerry Brown signed Senate Bill 3, which will gradually increase the state’s minimum wage from its current level of $10 per hour to $15 per hour by 2022. Both houses of California’s legislature passed the bill on March 31 to great fanfare, but the Governor waited until today to give formal approval, presumably to avoid signing the bill into law on April Fool’s Day.
The new law will increase the state’s minimum wage from $10 per hour according to the following schedule:
For employers with 26 or more employees:
January 1, 2017: $10.50 per hour
January 1, 2018: $11.00 per hour
January 1, 2019: $12.00 per hour
January 1, 2020: $13.00 per hour
January 1, 2021: $14.00 per hour
January 1, 2022: $15.00 per hour
For employers with 25 or fewer employees, each increase will be delayed by one year as follows:
January 1, 2018: $10.50 per hour
January 1, 2019: $11.00 per hour
January 1, 2020: $12.00 per hour
January 1, 2021: $13.00 per hour
January 1, 2022: $14.00 per hour
January 1, 2023: $15.00 per hour
Beginning in 2024, the minimum wage will increase annually up to 3.5 percent based on the United States Consumer Price Index for Urban Wage Earners and Clerical Workers, rounded to the nearest ten cents. The new law does not preempt local minimum wage ordinances that have been adopted by several cities in California in recent years, so local governments remain free to enact minimum wages higher than the state minimum.
Beginning July 1, 2018, the new law will also phase in paid sick leave for in-home supportive care workers, who were excluded from the state’s paid sick leave law that took effect in 2015.
The new law will also gradually increase California’s minimum salary for so-called “white collar” (executive, administrative, and professional) exempt employees, which is set at twice the state minimum wage for a 40-hour work week. Under the current $10 state minimum wage, California’s minimum salary is $800 per week or $41,600 per year. Unless the legislature acts to de-couple the minimum exempt salary from the minimum hourly wage, the minimum salary for white collar exempt employees in California will rise according to the following schedule:
January 1, 2017: $840 per week / $43,680 per year
January 1, 2018: $880 per week / $45,760 per year
January 1, 2019: $960 per week / $49,920 per year
January 1, 2020: $1,040 per week / $54,080 per year
January 1, 2021: $1,120 per week / $58,240 per year
January 1, 2022: $1,200 per week / $62,400 per year
The minimum salary for white collar exempt employees under the FLSA is currently just $455 per week ($23,660 per year). However, the Obama administration’s plan to change the FLSA regulations to raise that minimum to at least $970 per week ($50,440 per year), and then annually adjust the minimum to keep pace with inflation, is likely to take effect in the summer or fall of 2016. Any white collar employee in California must be paid a salary high enough to satisfy both the state and federal minimums to be exempt from overtime for hours worked in excess of eight per day or 40 per week.
Employers should immediately begin planning to adjust to the new law, which critics describe as a “job-killer.” The economic impact of a $15 minimum wage remains to be seen, and given the implementation schedule the new law’s effects will be gradual. But at a minimum we know this much is true: (1) Minimum wage workers who remain employed will see a wage increase; and (2) Those who are laid off or cannot find employment under the new law will have an effective minimum wage of zero.
Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA
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