Archives: California

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District Court Judge Defers to USDOL’s Continued Narrow Reading of “Retail or “Service” for Purposes of 7(i) Exemption

“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 Division of Labor Standards Issues Wage Theft Act Model Form

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

Sullivan v. Oracle Confirmed As California Law by Ninth Circuit

In August, we discussed the California Supreme Court’s ruling addressing the circumstances under which a non-California resident can be covered by that state’s employee-friendly Labor Code.  Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011).  Yesterday, the Court of Appeals for the Ninth Circuit adopted the state court’s ruling, rejecting Defendant’s constitutional challenges to that … Continue Reading

California Enacts Eerily Familiar “Wage Theft Prevention Act”

In April, we addressed at length New York’s newly-enacted “Wage Theft Prevention Act.” Now, through Assembly Bill 469, California has adopted a nearly identical law, the California Wage Theft Prevention Act. Effective January 1, 2012, the law increases the penalties available under existing provisions of the California Labor Code, and adds a detailed notice requirement to employees, echoing … Continue Reading

California Enacts Written Commission Plan Law

As discussed by our colleagues at the California Workplace Blog, California governor Jerry Brown has signed into law AB 1396, requiring all employers doing business in California to draft written contracts for any agreements with employees that involve commissions as a method of payment for services.  California joins New York in the vanguard of making … Continue Reading

California Court Finds State Meal and Rest Period Requirements Preempted by Federal Motor Carrier Regulation

While states generally are free to enact wage and hour laws providing greater protections than contained in the Fair Labor Standards Act, sometimes such laws run afoul of federal statutes governing particular industries. In a recent decision exemplifying this type of preemption, a judge in the United States District Court of the Southern District of California … Continue Reading

Clarity to California’s “Meal and Rest” Requirement Coming In 2012

As noted by our colleagues at, California’s highest court has scheduled oral argument in the Brinker Restaurant Corporation litigation, addressing the state’s meal and rest requirement, for November 8, 2011.  By rule, the Court must issue its decision within 90 days of oral argument, or, by February 6, 2012.  The decision should provide long-awaited … Continue Reading

California Legislature Adds New Penalties For “Willful” Misclassification As Independent Contractors

California, like several other states including Massachusetts and New York, has historically been harsh on employers which abuse the independent contractor designation, classifying individuals who are integrated into their business and function as employees as contractors for the purposes of avoiding tax and wage costs. In fact, Federal Express’ now decade-long battle with courts and agencies … Continue Reading

California Supreme Court Finds Out of State Employees Who Perform Work in California May Be Covered by California Labor Code

In a long awaited decision, California’s Supreme Court has ruled that the State’s Labor Code provisions governing overtime pay may apply to non-residents working in California for “a California-based employer.” Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011). A detailed analysis of the decision and its potential implications is available here. California wage-and-hour practitioners and commentators … Continue Reading

California Federal Court Rejects Plaintiff’s Attempt To Impose Joint Employer Liability On Outside Human Resources Consultant

Wage and hour plaintiffs, like all plaintiffs, seek recovery from the largest, most viable defendants. Often, employees who separate from failing businesses seek to broaden the scope of the concept of “employer” within the meaning of wage-hour laws and include as defendants other potentially-liable parties with “deep pockets.” As discussed here, a federal court in Pennsylvania recently … Continue Reading

California Court of Appeal Upholds Applicability of State Commission Exemption to Sales Consultant

As we have previously discussed, the FLSA contains an exemption for commissioned employees in the retail or service industry who meet certain parameters: colloquially referred to as the “7(i)” exemption. California has a similar exemption which the California Court of Appeal, Second Appellate District recently applied to a sales consultant, holding that Defendant’s payments qualified as “commissions.” Areso … Continue Reading

California Workplace Blog Coverage of Campbell v. PWC: Unlicensed Accountants Eligible for Professional Exemption

As discussed in detail on Jackson Lewis’ California Workplace Blog, the Ninth Circuit has resuscitated the California Labor Code’s “learned professional” exemption, reversing a decision from the Eastern District of California which held that unlicensed accountants could not qualify as a matter of law.  Campbell v. PricewaterhouseCoopers, LLP, 2011 U.S. App. LEXIS 12062 (9th Cir. … Continue Reading

California’s Highest Court Rules That Employees Do Not Have A Private Right of Action Under Tip Misappropriation Statute

As analyzed in more detail  here, the California Supreme Court recently ruled that the California labor code provision prohibiting employers from taking or sharing in tips left for employees by customers – Cal. Lab. Code § 351 (“Section 351”) – does not provide  private litigants with a right to sue their employers directly for alleged … Continue Reading

California Appeals Court Issues Pro-Employer Ruling Regarding Wage Statement Compliance

The surge of state wage and hour claims continues in California. Among the numerous California Labor Code provisions which has been the subject of repeated litigation is California Labor Code § 226(a) (“226”), which creates specific requirements concerning the content of employee wage statements. Included among its provisions is a requirement that wage statements indicate the “total … Continue Reading

Ninth Circuit Decision Highlights Concerns With Independent Contractor Classification

In a decision reiterating important independent contractor issues for employers, the Ninth Circuit Court of Appeals last week reversed a lower court decision holding that certain delivery drivers were properly classified as independent contractors under various provisions of the California Labor Code. Narayan v. EGL, Inc., 2010 U.S. App. LEXIS 14279 (9th Cir. July 13, 2010). … Continue Reading

California Meal and Rest Period Compliance: Where Are We Now?

As every California employer knows, wage and hour class actions in California are never-ending.  One basis for many of these class actions has been employers’ alleged non-compliance with California meal and rest period requirements.  As to meal periods, the two overriding issues have been whether an employer is required to ensure non-exempt employees take their meal … Continue Reading

California DLSE Modifies Its Standard For Legality of Unpaid Internships

Subsequent to our post of April 6, the California DLSE issued a lengthy new opinion letter regarding trainees, available here. In it, the Division upholds the uncompensated “intern” status of participants in the Year Up program, a program in which a not-for-profit places 18-24 year olds in underserved communities to develop marketable skills in the information … Continue Reading