The U.S. Court of Appeals for the Ninth Circuit has dealt California employers another setback when responding to claims of misclassification of independent contractor status for violations of the Industrial Welfare Commission Wage Order (“IWC Wage Orders”), holding that the State’s recently-adopted “ABC” test must be applied retroactively. Vazquez v. Jan-Pro Franchising Int’l, Inc., 2019 U.S. App. … Continue Reading
The International Brotherhood of Teamsters, Local 2785 has filed a petition for review to the Ninth Circuit Court of Appeals on the Federal Motor Carrier Safety Administration’s (FMCSA) determination that California’s meal and rest break rules are preempted as applied to drivers of commercial motor vehicles (CMVs) subject to the FMCSA’s hours-of-service (HOS) regulations. This primarily … Continue Reading
Rejecting an argument that the use of the phrase “other nonproductive time” rendered the statute unconstitutionally vague, a California Court of Appeal recently upheld the state’s law regarding compensation of piece-rate workers. Nisei Farmers League v. California Labor & Workforce Dev. Agency, 2019 Cal. App. LEXIS 10 (Cal. Ct. App. Jan. 4, 2019). Therefore, the … Continue Reading
The California Supreme Court has held that, under state law, when an employee earns a flat-sum bonus during a pay period, the overtime pay rate will be calculated using the actual number of non-overtime hours worked by the employee during the pay period. Alvarado v. Dart Container Corp., 2018 Cal. LEXIS 1123 (Cal. Mar. 5, … Continue Reading
Beginning with contracts entered into on or after January 1, 2018, direct (general) contractors in California will be held jointly liable for their subcontractors’ unpaid employee wages, fringe benefit or other benefit payments or contributions under Assembly Bill 1701, signed into law by Governor Jerry Brown on October 14th. This joint liability requirement is codified … Continue Reading
Nike retail employees required to undergo post-clockout, pre-exit bag and coat checks are not entitled to compensation under California’s wage and hour laws for the time spent on such inspections, a federal district court has ruled. Rodriguez v. Nike Retail Services, Inc., 2017 U.S. Dist. LEXIS 147762 (N.D. Cal. Sept. 12, 2017). Assuming such inspections … Continue Reading
San Diego, California has become the latest municipality to add minimum wage and paid sick leave requirements for city employers. Full coverage is available here.… Continue Reading
Over the past few years, numerous states and municipalities have increased the statutory minimum wage. Further, through Executive Order, President Obama increased the federal minimum wage applicable to federal contractors. Consistent with this trend, the governors of both California and New York have now reached new legislative deals with their respective legislative branches which provide … Continue Reading
As covered on the Jackson Lewis web site here, Santa Monica (CA) has joined the City of Los Angeles and other municipalities in enacting a minimum wage and paid sick leave statute. Absent a change or legal challenge, the minimum wage schedule set forth in the new ordinance takes effect on July 1, 2016.… Continue Reading
Cases challenging the independent contractor status of certain service providers under the wage-and-hour laws are likely to continue in the near future due to the difficulties in applying the law to complex factual patterns. The Department of Labor recently provided additional guidance for determining contractor status in the form of an Administrator’s Interpretation (and the … Continue Reading
Applying California’s administrative exemption test, the U.S. Court of Appeals for the Ninth Circuit recently concluded an insurance company properly classified its claims adjusters (who handled and processed disability claims) as exempt from the overtime provisions of the California Labor Code, notwithstanding the clerical duties the adjusters performed and their characterization of their work as … Continue Reading
While many state laws regulate the distribution of gratuities (as well as service charges and other fees), the overwhelming judicial view, as originally set forth by the Ninth Circuit in Cumbie v. Woody Woo and joined by district courts in other jurisdictions, holds that an employee’s right to tips under the FLSA flows exclusively from … Continue Reading
Confronting a novel issue of state law in the wake of the California Supreme Court’s 2012 decision addressing California’s meal-and-rest break requirements, an appellate panel of the California Court of Appeal’s Second District ruled that a security firm did not violate rest break requirements where its security guards were “on call” during the required rest … Continue Reading
The California Supreme Court’s 2012 decision in Sullivan v. Oracle signaled, but did not conclusively rule, that no circumstances could support a California Labor Code claim by an employee working outside the State of California. However, a new California federal court decision emphatically holds that the application of California’s Labor Code should end at the … Continue Reading
As the healthcare field continues to expand to meet evolving standards of care and government regulations, industry employers have created or modified categories of professional employees to meet business and medical needs. New positions have been created which are not addressed by name in existing DOL regulations and case law concerning applicability of the learned … Continue Reading
In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H2A agricultural guestworker program, the Court of Appeals for the Ninth Circuit (the largest federal circuit, encompassing Washington, Montana, Idaho, Oregon, Nevada, California, Arizona, Alaska and Hawaii) ruled an employer must … Continue Reading
Financial services and insurance industry employers regularly classify service providers, including financial advisors and independent insurance agents, as independent contractors, especially if such individuals cultivate and service their own clientele with a high degree of autonomy. Despite that autonomy, knowledgeable industry professionals and their counsel are aware of the legal risks associated with the independent contractor … Continue Reading
Applicability of various FLSA white collar exemptions to workers in the information technology sector continues to be a detailed and difficult analysis, in part due to the Department of Labor’s rules regarding the “computer professional” exemption, which have failed to keep up with the rapidly evolving workforce in the technology sector of the economy. The computer … Continue Reading
As with the United States Supreme Court’s decision last year in Wal-Mart v. Dukes, the employment law community eagerly awaits the impact of the California’s Supreme Court’s recent decision in Brinker Restaurant Corp. on pending and new putative class actions alleging violations of California meal and rest period requirements. One early return favors employers, as a … Continue Reading
As we frequently discuss in this space, application of the FLSA’s “learned” professional exemption is a frequent topic for litigation, including within the 9th Circuit. These disputes emanate not only from jobs not historically recognized by the DOL as learned professions, but even from within those areas, as exemplified by a new District Court decision in … Continue Reading
California’s Supreme Court has again spoken on meal and rest period litigation, this time holding neither employers nor employees may recover their attorney’s fees in cases requiring employers to provide meal breaks and rest breaks. In the wake of its highly publicized Brinker Restaurant Corporation decision, where the Supreme Court ruled California law requires employers to … Continue Reading
Jackson Lewis coverage of the California Supreme Court’s long-awaited decision in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Calif. Apr. 12, 2012), addressing the requirements of that State’s meal and rest break statute, California Labor Code § 226.7, is available here.… Continue Reading
“Retail or service” is a classic example of a phrase of which the apparent plain language meaning does not bear a strong relationship to its legal or practical meaning for purposes of application of the 7(i) exemption. In determining whether an employee works in an industry properly deemed “retail or service” (and accordingly establishing eligibility for … Continue Reading
California has joined New York in requiring a new hire wage notification under its Wage Theft Prevention Act, with the California statute effective for all new hires on or after January 1, 2012. To assist employers, the California Division of Labor Standards Enforcement has issued its model form complying with the new law. The DLSE’s model form … Continue Reading
