California Walmart Employees Awarded $6 Million

california walmartWhen the company did not properly address employee concerns in a California Walmart, workers took matters to the courts for a resolution. It turns out to have been an excellent strategy, with California courts once again maintaining the rights and dignity of the state’s workforce.  If you find yourself working for an unscrupulous employer who fails to provide proper compensation, a local labor and employment attorney may be able to help. 

Walmart’s Violations

In a class action suit filed on behalf of about 5,000 workers in a Chino, California Walmart, employees received a big win when the court found the company had, indeed, violated the Unfair Competition Law (UCL) and/or California’s Private Attorney General Act (PAGA) in several ways.  Walmart was found to have neglected to compensate employees fairly:

  • Meal and rest periods were not provided;
  • Employees were not compensated for all hours worked;
  • Overtime pay was denied to employees;
  • Final paychecks were not forthcoming;
  • Wage pay stubs did not contain complete and correct itemization.

Legal Expectations

California’s Unfair Competition Law is designed to provide relief for unfair business practices. This may relate to practices that are fraudulent, that violate statutes, or that otherwise are unfair to employees.  Under the UCL, plaintiffs may be reimbursed monies owed and businesses may be forced to change their practices.    

The Private Attorneys General Act gives employees the power to sue for civil damages related to employer violations of the labor code. 

The law is clear regarding meal breaks for employees who work five hours or more:  

  • Employers are required to provide a 30-minute break that is unencumbered by workplace duties;
  • The meal break must be uninterrupted time over which the employer has no control;
  • Employees may not be impeded or discouraged from taking these breaks.

For employees who work over 10 hours in a single shift, a second break must be provided, as well.

Details of the California Walmart Case

In the California Walmart scenario, the court found that employees were discouraged from taking their guaranteed breaks by an onerous security check they were required to undergo when leaving the building. Now, while it is not incumbent upon an employer to ensure that employees perform work during their breaks, when a lengthy security check significantly diminishes the amount of time allowed for a break, the company can be found in violation of the law. In the case of Walmart, that is precisely what occurred, and a jury believed employees who claimed it was an impediment to taking lunch breaks. [Read more…]

Commute Time Compensation?

commute time compensationCommute time compensation? Most people who work spend a fair amount of time commuting to the job site. Furthermore, many jobs require workers to commute as part of the job. With such variety in the expectations and commuting requirements for various occupations, how can you know whether or not your employer is treating you fairly when it comes to commute time? Actually, the courts have come up with some pretty clear guidelines on this topic.   

Commuting in a Company Vehicle

Installation and repair crews for Pacific Bell Telephone Company believed they should be paid for their commute time to and from home because they were driving vehicles that were provided by Pacific Bell, and those vehicles were equipped with the tools and equipment necessary to address customer needs. They decided to pursue the issue in court.  

Details of the Commute Time Case

Technicians were paid hourly for an eight-hour day to address customer issues at customer’s homes. While driving the prescribed vehicle and using company tools was required, employees had a couple of choices when it came to those vehicles:

  • Technicians could take the company vehicle to and from their own homes. This option was known as the Home Dispatch Program (HDP). Technicians received no pay for their commute time driving to a customer’s home prior to 8:00, and they were not compensated for the time spent driving home after their last appointment.
  • Employees could drive their personal vehicles to the Pacific Bell garage to exchange it for a Pacific Bell vehicle. These employees were paid for their time spent going to the garage in the morning, and from the garage home at the end of a shift.

In either case, employees were compensated for the commute time driving to and from the warehouse when they needed to restock materials for the job.

Court Findings

The California Supreme Court defined hours worked as those hours during which an employer maintains control of an employee. The issue of employer control was central to their findings, and was directly correlated to whether or not riding in employee-provided transportation was required. The court referred to Morillion v Royal Packing Co., which dealt with a similar issue. In that case, workers were required to meet at a particular place in order to take the company bus to the worksite. Employees were under the control of their employers at that point because they could not make the decision to stop at a drive-through window for coffee, could not pick up or drop off kids on the way, and could not run other errands while on the bus. Therefore, the commute time on the bus counted as hours worked.  

In the case of the Pacific Bell Workers, employees were not required to drive a company vehicle to and from home. Additionally, they were free to make stops during their commute time in the company vehicle, meaning the worker was not under the control of the company. Therefore the commute time spent under the HDP plan was not compensable. [Read more…]

Wage Suit – Bus Drivers Sue

wage suit - school bus driverSan Francisco bus drivers are fighting a wage suit against First Student, Inc., their employer, who allegedly underpaid them, in a breach of contract. If you find yourself in a similar situation, the assistance of a local employment attorney could prove to be useful.

Wage Suit – The Charges

The lawsuit, Humes v. First Student, Inc.,which was filed in 2015, was recently given a breath of life by the Ninth Circuit, giving the plaintiffs the opportunity to create a class action suit.  According to the Complaint, bus drivers had several issues with the company:

  • They were paid amounts below minimum wage;
  • They were not paid on schedule;
  • They were not provided with accurate statements detailing their hours and wages;
  • They were subject to unfair business practices;
  • Their oral contract was breached.

Details Behind the Wage Dispute

According to a negotiated contract, the bus drivers were promised a minimum number of hours of daily pay regardless of the number of assignments per day.  In other words, drivers were guaranteed a minimum daily wage, whether or not the buses were utilized for the full day. In addition to driving, employees were responsible for cleaning and fueling the buses.  In the event these responsibilities took more time than the hours set, they were to be paid for the additional hours worked.

In 2015, the policy for tracking hours worked changed. Employees were required to track only the hours worked that were beyond regular time. These hours were recorded in what was called an exception log.  Additionally, drivers were expected to complete a formal billing sheet, which was ultimately sent to the school district for billing purposes. Drivers believe that the record keeping led to confusion in the payroll office, resulting in their wage suit for alleged underpayment and check stub errors.

Information Required on Pay Stubs

According to Labor Code 226, particular information must be included on a worker’s pay stub, including:

  • The number of hours the employee worked during the pay period;
  • The gross earnings for the pay period;
  • Deductions from wages;
  • The net earnings for the pay period;
  • The dates of the pay period;
  • The hourly rate of pay.
Statute of Limitations

The statute of limitations for a wage suite of this nature is just four years. Nonetheless, the court has agreed to hear claims dating back to October of 2011, based on arguments presented by the plaintiff. [Read more…]

Wage Theft a Rampant Problem in California

wage theftStarbucks is the latest big-name business that has been vilified for widespread wage policies that rob employees of earned wages. The court case has been brewing for six years and has undergone numerous twists and turns. Initially, the case, which was filed by former employer Douglas Troester, was deemed by the courts to be too trivial to even consider. Ultimately, though, California’s Supreme Court overturned that ruling, and found in favor of Troester. If you find yourself suffering from unethical wage theft practices at your place of employment, consider seeking the assistance of a local employment attorney to resolve the problem.

What Constitutes Wage Theft?

Wage theft can rear its ugly head in many forms. At Starbucks, the issue involved superiors asking workers to complete additional tasks after clocking out. Additional forms of wage theft include:

  • Failing to pay overtime;
  • Refusing to provide an employee’s final check after said employee leaves the job;
  • Paying for fewer hours than actually worked, or not at all;
  • Failing to pay minimum hourly wages or higher.

Employers Break Several Laws with Wage Theft Practices

Wage laws are outlined in a number of places, including:

  • The Fair Labor Standards Act (FLSA): Outlines federal minimum wage requirements and time-and-a-half pay for any hours over 40 in a week;
  • Bacon-Davis Act: Provides that workers who are employed by federal contractors are entitled to the prevailing wage in the vicinity in which their work occurs;
  • Tax Laws: Guidelines outline when employers may classify workers as independent contractors (saving employers money) and when workers must be classified as employees.

Common Fields for Wage Theft

Although it can happen in any field, certain industries tend to exploit wage theft practices more often than others. In particular, wage theft is prominent in restaurant work, the agricultural field, janitorial work, retail employment, and home health care services.

California Tops States for Wage Theft

Surprisingly, of the nearly $9 billion wage theft claims in the country in the last couple of decades, more than 50% have come from right here in California. One report states that wage theft is actually “built into the business model” of many American corporations. In California, a good chunk of the infractions are related to strict state codes for the rest and meal breaks to which employees are entitled. Another common issue relates to whether employees should be paid for the time it takes to put on and remove protective equipment and clothing. Disturbingly, the lion’s share of these cases are not against small operations that may be struggling to survive. Most labor probes involve large, profitable businesses that know better but choose to cut corners when it comes to fair pay to their employees. [Read more…]

Subcontractors Cheating Employees. Who is Responsible?

subcontractorsIf you are an employee of a company that subcontracts services for another business, you may be interested to know that if your company fails to adhere to California laws regarding wages, breaks, and so forth, you may be entitled to damages from multiple sources. A case in point involves the Cheesecake Factory, which contracted with Americlean Janitorial Services Corporation for cleaning services. Americlean then hired subcontractors Magic Touch Commercial Cleaning. Magic Touch failed to pay minimum wages, denied workers rest breaks, and ignored overtime rules. When the California Labor Commissioner’s Office got wind of the problem, they wound up assessing the three companies for a combined total for $4.57 million in fines.

California Law Butts up Against Specifics of This Subcontractors Case

According to California law workers are entitled to specific rest and meal breaks, including:

  • A 10-minute break for every four hours on shift;
  • These rest breaks should be as close to the middle of the work period as possible;
  • They must be in addition to toilet breaks;
  • Meal periods must be provided for every five hours worked, and must be a minimum of 30 minutes long;

At three different California Cheesecake Factory franchises, cleaning personnel were required to work daily shifts without appropriate rest and meal breaks. They typically worked roughly 10 hours of overtime weekly, but were paid only a flat rate for eight hours of work each day.

Businesses are responsible for workplace violations committed by their subcontractors according to California law SB 588,  putting Cheesecake Factory, Americlean, and Magic Touch all in a precarious position. Workers received almost $4 million. Liquidated damages were calculated based on the money underpaid in wages plus interest, in addition to a full hour of pay for each day workers were denied their 10-minute rest breaks. Furthermore, the companies shared over $500,000 in civil fines.  

Thanks to SB588, big corporations can no longer hide behind contracts with smaller companies. When violations occur under their umbrella, they share in culpability with their subcontractors. The Labor Commission is streamlining procedures to speed up collections on unpaid wages. Employers are now required to post bond for and judgments related to these liabilities, and get the employees paid. [Read more…]

Wage Disputes in California

wage disputesWage disputes are avoidable. Employers are required to pay employees their due on time. It just makes sense, and the principle is supported in both state and federal law. Nonetheless, wage disputes are not uncommon in California. If you find yourself fighting for earnings to which you are legally entitled, a local employment attorney may be worth visiting.

Wage Disputes – When is Pay Due?

Every employer has their own systematic pay schedule for salaried, hourly, and commissioned employees. Whatever schedule has been agreed to should be adhered to, including agreements regarding bonuses, vacation pay, and/or benefits.

As a general rule, hourly employees are paid twice monthly, or, in particular situations, once monthly.

Work periods should be paid for on paydays immediately following the work period.  For example, work done from the first to the 15th of a month should be paid for within the following ten days.  If a particular payday happens to fall on a holiday or a Sunday, paychecks should be available on the following business day. Any payments that are later than this could evoke stiff penalties.

Administrative Pay

For administrators, executives, and other professionals who are paid on a monthly basis, paychecks for a given month of work must be available no later than the 26th day of the month.

Agricultural Workers

Agricultural workers must be paid within one week following work. For work performed between the 1st and 15th of the month, payment must be made no later than the 22nd of the month.

Garment Workers

When garment workers (those employees participating in any aspect of garment or accessory production) are not paid earned wages, they may pursue payment from either the employer or the contracting company as per California Labor Code 2673.1.


Similar to garment workers, subcontractors’ employees may be able to receive payment from a general contractor if the subcontractor is unlicensed.

Temporary Agencies

Employees put to work by a temporary service are to be paid on a weekly basis, unless the job assignment is merely day-to-day work. In that case, wages should be paid at the day’s end.

Wage Disputes Over Wages After Being Discharged

Unless an employee resigns while under a contract for a defined time period, an employee who quits without notice is entitled to owed wages within 72 hours. For workers who provide 72 or more hours’ notice, payment may be expected at the close of the final workday.

Penalties for Employer Who do Not Pay on Time

Employers could get stuck with much more than the original wage due if they lose a wage dispute.  

  • They could pay an additional 30 days of wages;
  • They could be responsible for interest on late wages;
  • The court could assign them all attorney’s fees and court costs;
  • The manager or an agent of the company could be fined $1,000;
  • That manager or agent could face six months of imprisonment.

[Read more…]

Part-Time Workers Eligible for More Hours

part-timeAre you a part-time employee in San Jose who would love a few more hours, but who has not been able to convince your employer to give you more time on the job? If so, Measure E might just make you smile.

Measure E Voted in

This measure, approved by voters in November, came into effect in March 2017. It requires that employers with 36 or more employees must give current part-time employees more working hours if more work is available. That is in direct contrast with some employers’ previous decisions to simply hire additional part-time workers.

The law impacts all part-time workers, including temporary workers and subcontractors. The limit to the law is that the additional work may not be at overtime or premium rates; nor does the law override collective bargaining agreements.

For franchises and chains owned by the same employer, the number of employees is determined by adding the combined number of employees at each location of the business, including those businesses located outside of San Jose.

Workplace Definitions

Anyone who has completed a minimum of two hours of work is considered an employee and is entitled to minimum wage in California.

An employer is one who exercises control over the schedule, wages, or working conditions of workers, and either pays San Jose business taxes or is legally exempt from those taxes, including insurance companies, banks and nonprofit organizations.

Enforcement Provisions

You must post in your workplace a bulletin in multiple languages outlining the new work hour requirements and provisions. Non-compliance could result in fines and penalties to the employer, or potentially even a civil action.

Exemptions to the Part-Time Law

For employers with 35 or fewer employees, the ordinance does not apply.

An additional exemption is allowed for hardship. An employer may be granted a hardship exemption for as much as 12 months at a time, if said employer can establish that they have attempted to comply with the law but that compliance would be either impractical, futile, or impossible.

Impacts Outside of San Jose

This initiative led to the introduction of the Opportunity to Work Act. This legislation contains language similar to that of the San Jose measure, but would apply to employers with 10 or more employees. The proposed law is quite a bit more restrictive, in that this measure contains language addressing retaliation, and does not provide hardship exemptions. Employers and employees alike are keeping an eye on this legislation to see how it falls out. [Read more…]

Overtime Pay Rules Get a Bump: California Workers Expect to See More in their Pockets

Overtime Pay RulesChanges to federal overtime pay rules implemented by the US Department of Labor (DOL) take effect December 1st of this year. It is anticipated to impact over four million white-collar workers who previously earned salaries that exceeded overpay rule thresholds, with nearly 400,000 of those workers residing in California.

Just what, exactly, do the new overtime pay rules mean for California workers?

The most critical change to the overtime pay rule involves the annual salary threshold: Although the previous federal threshold was only $23,660, the new minimum is significantly higher, topping out at over $47,000. That amount also exceeds the California state maximum annual earning cap of $41,600.

What are Basic Overtime Pay Requirements?

Employers are expected to pay minimum wage or more for the first 40 hours worked in a week, and overtime pay at one and one-half times the regular rate for all hours beyond 40. In California, the number of hours worked in a day is considered in addition to the number of hours worked in a week.

Are There Exceptions to the Overtime Pay Rules?

Doctors, teachers, and lawyers are all exempted from the overtime rules laid out by the Fair Labor Standards Act (FLSA). Executives who supervise at least two employees and have hiring/firing authority are exempted, as well as individuals involved in outside sales and certain persons who work with computers. Finally, salaried employees whose pay is not flexible or based on quantity or quality of work may be exempted from the overtime pay rules. Each classification of employee has several qualifying points, making the exemption determination somewhat complex.

Can Salaried Employees Expect Overtime Pay?

Assuming one meets the qualifications, the short answer is yes. Consider too that overtime pay for one earning a salary would necessarily include all aspects of the salary package—not simply a sum based on a calculation of hourly wages. While record keeping obviously facilitates an understanding of overtime hours, time clocks are not required.

Are Government Workers Entitled to Overtime Pay Remuneration?

Government workers do not have a blanket exemption with regard to overtime pay, and, in fact, FLSA provides specific guidance with regard to compensatory time (comp time) for government workers.  Essentially, comp time may be earned at the same rate as overtime pay, meaning that an employee who worked 50 hours in one week earned 10 hours of overtime, or the equivalent of 15 hours of comp time.

Do Negotiated Agreements Supersede these Overtime Pay Rules?

It is possible for employees to engage in collective bargaining and determine other frameworks for overtime pay. [Read more…]

New California Law Will Change Pay Stub Requirements

Pay StubOn July 22, 2016, Governor Jerry Brown signed a bill that will change pay stub requirements, allowing California employers to include less information on some of your employee wage statements. Assembly Bill No. 2535 amends Section 226 of the California Labor Code, which lays out what information must be listed on your pay stub, and which employees must receive them. The bill creates an additional exemption, regarding which employees must be provided with a list of how many hours they worked – meaning that fewer workers will be entitled to receive such a list.

Under existing law, all employees must be provided with a pay stub either at the time they are paid, or semimonthly. The wage statement must include certain types of information, including:

  • Gross wages earned
  • Net wages earned
  • The number of piece-rate units earned
  • Deductions
  • The dates of the pay period in question
  • The employee’s name, and the last four digits of the employee’s social security number or employee identification number, and
  • The employer’s name and address.

An employer is also required to list the hours that the employee in question worked during the pay period, unless the employee is a) a salaried employee, and b) is exempt from overtime.

What Pay Stub Requirements the New Law Changes

Under AB 2535, which takes effect on January 1, 2017, another group of employees will added to the hours exemption. Employers will not be required to list an employee’s total hours worked if the employee is exempt from the payment of minimum wage and the employee is exempt from overtime.

Some examples of employees who may fit this exemption are:

  • Outside salespersons
  • Employees working in an executive, administrative or professional capacity
  • Workers who are in their employers’ immediate families (such as someone who works for their spouse, their parent, or their child)
  • Computer software workers who are salaried employees in accordance with Section 515.5 of the California Labor Code (which makes certain software professionals exempt from overtime if they meet certain requirements)
  • People participating in (or working as staff members for) certain live-in rehabilitation programs focused on preventing substance abuse, and
  • Employees working in participation with certain national service programs.

Complying With Pay Stub Requirements

There are penalties for failing to comply with Section 226. An employer can face a fine of $50 for the first pay period in which it fails to provide an employee with the proper information – and $100 per employee per pay period for each violation in subsequent pay periods, up to $4,000. An employee who takes action against an employer regarding a Section 226 violation may be awarded costs and attorney’s fees. If an employer fails to allow an employee to inspect or copy records, the employer may be liable for a $750 penalty to the Labor Commissioner. [Read more…]

Unused Vacation Time Lawsuit – Reznik v. IBM

Unused Vacation TimeReznik v. International Business Machines Corporation lawsuit. How much money is owed to an exiting employee for unused vacation time? Lots of us are familiar with “use it or lose it” vacation time policies – in which an employee forfeits any unused vacation time that he or she still has by the end of a year. In California, these types of policies are generally considered illegal. The California Supreme Court stated in the case of Suastez v. Plastic Dress-Up Co. that when an employer offers vacation time, that time vests, and is protected from forfeiture of unused vacation time.

This means that when an employee’s position is terminated, the employee is most likely entitled to compensation for any unused vacation time that the employee has accumulated. Section 223.7 of the California Labor Code states that an employee in this situation must be paid for all vested vacation time at his or her final salary rate. (There is an exception, however, if a collective bargaining agreement is in place, and the agreement allows vested vacation time to be forfeited.)

IBM was recently accused of violating this statute by a former employee named Yakov Reznik.

Reznik began working for IBM in 2012, and went on long term disability in 2014. During his time at IBM, he did not take any vacation days. He maintained that IBM failed to fully compensate him for his unused vacation days at the conclusion of his employment – and alleged that IBM’s real vacation policy is significantly different than its stated policy.

Does IBM’s Unused Vacation Time Policy Violate the Labor Code?

IBM’s stated policy for employees working in California is often referred to as the “California Plan.” According to the plan, employees with less than 10 years of experience at IBM, such as Reznik, may accrue up to 15 vacation days per year. In addition, employees are given “personal choice holidays,” and are allowed to carry over up to six unused personal choice holidays per year.

Under the California Plan, Reznik had accumulated six unused personal choice holidays, and had accrued 15 vacation days. When Reznik left IBM, he was paid $12,502.75, which amounted to 25 days of work at the salary he had been receiving.

Reznik alleged that IBM’s practices did not adhere to the California Plan. He claimed that he had been shown a PowerPoint presentation which stated that unused days cannot be carried over from one year to another, and that they cannot be “cashed out.” He alleged that this represented IBM’s true policy on the accrual of vacation time. He also argued that personal choice holidays should be regarded as vacation days, and thus should be subject to Section 227.3.

At trial, Reznik’s complaint was dismissed. The U.S. District Court for the Northern District of California granted IBM’s motion for summary judgment, holding that Reznik received proper compensation for his vacation time.

The ruling pointed out that, regardless of the language of the PowerPoint presentation, IBM had allowed Reznik to accrue 15 days worth of vacation time from a previous year and had paid him for his six unused personal choice holidays as though they were vacation days. According to the ruling, Reznik was only entitled to payment for 21 days of work, and thus he had actually been overpaid by four days. [Read more…]


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