[03-21-19] Webinar: The Biggest Wage & Hour Payroll Mistakes. Listen to our webinar at https://youtu.be/99xb7lEb5X0
The California Court of Appeals recently expanded the application of reporting time pay to employees who merely call in to learn if they are required to work and who do not actually physically report to work.
The case is Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167. Anyone who has been to a mall in the last 35 years will recognize Tilly’s as a retail apparel and footwear company. Tilly’s developed an on-call scheduling practice for Tilly’s retail sales and cashier employees where employees were assigned on-call shifts but were not told until they called in two hours before their shifts start whether they should come in to work. Historically, these employees did not receive any compensation for having been “on-call”, meaning, if an employee was assigned an on-call shift, called in, and was told the employee should not come in to work, Tilly’s would not compensate that employee for that day.
The plaintiff, a Tilly’s employee, filed a class action lawsuit against Tilly’s alleging that Tilly’s was required to pay employees reporting time pay for being on-call. The Wage Orders mandate that employers pay an employee reporting time pay for each day an employer requires an employee to “report for work” but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work.
Tilly’s argued that “report for work” means physically being present at the assigned work location and that employees who merely called in to learn about a shift were not reporting for work. Naturally, being that this is California, the Court of Appeals was presented with an opportunity to get more money to employees and held that an employee can “report to work” by “any manner of reporting, whether in person, telephonic, or otherwise.” Therefore, each day an employee is on-call and required to call in to learn whether the employee should come to work, the employee must be paid reporting time pay.
Reporting time pay is half the employee’s usual or scheduled day’s work, but in no event less than two hours of pay and no more than 4 hours of pay. Reporting time pay is calculated and paid at the employee’s REGULAR RATE of pay, not straight time or base pay.
This Court’s opinion is thankfully not retroactive. Nevertheless, California employers must now start paying reporting time pay to on-call employees who merely call in for work or develop a scheduling practice that avoids this type of situation.
We recommend that all employers contact us to review their scheduling practices and discuss the whether on-call employees should be paid reporting time pay. Please contact Kurtis Urien at Kurtis@mrjclaw.com for assistance with reporting time pay.
2/14/19 Leaves of Absence – Part 2: All Other Leaves webinar available on YouTube at https://youtu.be/h75hlwcN9P8
Leaves of Absence, Part I Medical webinar 1.16.19 on YouTube at https://youtu.be/LrZ6BbTE5tA
11/8/18 Why Can’t I just Pay Everyone a Salary? Listen to the webinar on YouTube at https://youtu.be/atvk96z5EXY
New Laws for 2019 – What you Need to Know. Listen to the webinar on You Tube at https://youtu.be/tUkLkFaxCrY
The Supreme Court’s opinion is found in Epic Systems Corp. v. Lewis , 584 U.S. ___ (May 21, 2018) No. 16-285. Previously, two federal circuit courts of appeal held that class action waivers in employment arbitration agreements violate an employee’s right to collectively bargain and engage in concerted activities provided by the National Labor Relations Act of 1935. A different federal circuit court of appeal held that class action waivers in employment arbitration agreements are permissible under the United States Arbitration Act of 1925. The Supreme Court agreed to hear the three cases to resolve the conflict in decisions among the federal circuit courts.
The Supreme Court held that the plain language of the United States Arbitration Act, which states that arbitration agreements must be enforced as written, manifests the intention and instructions from Congress. Justice Gorsuch delivered the opinion of the Court and stated that though the policy may be debatable, the law is clear. Justice Ginsburg dissented and stated that the majority’s opinion would inhibit an employee’s ability to seek redress for small wage claims that are too expensive and burdensome to litigate. Justice Ginsburg called upon Congress to pass legislation that would eliminate or obviate class action waivers in employment arbitration agreements.
Many California legislators seem to share the same belief as Justice Ginsburg. In October 2015, the California legislature passed AB 465 which would have prohibited arbitration agreements in the employment context. Governor Brown vetoed AB 465 stating that he was not ready to sign a blanket prohibition of arbitration agreements in the employment context and that the legislature should pass targeted legislation aimed to remedying specific issues presented by mandatory arbitration of employment claims.
On February 16, 2018, Assembly Member Gonzalez-Fletcher introduced AB 3080, which would ban mandatory arbitration agreements in the employment context. Assembly Member Gonzalez-Fletcher has connected her bill to the #MeToo movement and claims that employers use arbitration as a means to silence employees who have been the subjects of sexual harassment and discrimination as well as wage theft and related disputes. AB 3080 is currently being discussed in the Appropriations Committee. Our office is tracking the progress of this bill.
Even though the Supreme Court has held that employers may have class action waivers in arbitration agreements, an arbitration agreement with a class action waiver must still be an enforceable contract under California law.
We recommend that all employers contact us to review their employee arbitration agreements and discuss the value of including a class action waiver. Please contact Kurtis Urien at Kurtis@mrjclaw.com for assistance with employee arbitration agreements.
The California Supreme Court has adopted a new test for determining whether a worker should be classified as an employee or an independent contractor under California law.
The Court’s opinion is found in Dynamex Operations West, Inc. v. Superior Court , (2018) S222732. The employer in this case classified delivery drivers as employees until 2004 when the employer adopted a new policy and contractual arrangement under which all drivers were classified as independent contractors. Soon after, Dynamex’s drivers filed a class action lawsuit for violations of California labor laws. In determining whether the class action lawsuit could proceed, the Court of Appeal applied the definitions of ‘employ’, ‘employee’, and ‘employer’ that are found in the applicable IWC Wage Order and held that the drivers were employees, not independent contractors. Dynamex appealed the Court of Appeal’s decision to the California Supreme Court arguing that the Court of Appeal should have applied the multi-factor test previously adopted by the California Supreme Court and many other jurisdictions and administrative agencies.
The California Supreme Court instead adopted a new test to determine whether a worker is an employee or independent contractor and held that Dynamex’s drivers were employees. The Court named this new test the “ABC” test. Under the ABC test, a worker is properly considered an independent contractor to whom an IWC Wage Order does not apply only if the hiring entity establishes all of the following:
(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and if fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
All three requirements must be satisfied for a worker to be properly classified as an independent contractor. If just one requirement is not satisfied, the worker must be classified as an employee.
The Court’s new test is a considerable change and requires all companies that engage independent contractors to reevaluate their relationships and classifications. Companies that have built their business based on a model that utilizes independent contractors may need to reevaluate their business model.
We recommend that all companies that engage independent contractors contact us to discuss worker classifications and compliance with the Court’s new test. Please contact Marla Merhab Robinson at Marla@mrjclaw.com or Kurtis Urien at Kurtis@mrjclaw.com for assistance with classifying workers.
The California Supreme Court recently clarified how overtime premiums must be calculated and paid for employees who receive shift differential pay, flat sum bonuses, or similar incentives for working less attractive shifts or shifts scheduled at night or on weekends.
The Court’s opinion is found in Hector Alvarado v. Dart Container Corporation of California. The employer in this case paid employees flat sum bonuses for working weekend shifts as an incentive for showing up and working a weekend. These employees often worked overtime during the weekend shifts. The employer calculated and paid overtime premiums based on a federal regulation as California law was silent on the proper calculation method. The DLSE’s Enforcement Manual recommended a formula that differed from the federal regulation, but the employer declined to follow the DLSE’s recommendation as it was not binding law.
The federal regulation requires employers in this context to divide the employee’s compensation (including the flat sum bonus/shift differential pay) by the total hours worked by the employee to find the employee’s regular rate of pay. The DLSE’s recommendation was to divide the employee’s non-overtime hours worked in the applicable day by the total non-overtime compensation earned by the employee to find the employee’s regular rate of pay.
The Court held that the DLSE’s method is the appropriate method to calculate and pay overtime in this context as it is more favorable to employees.
The following is an example to illustrate the proper way to calculate overtime premiums in this context:
Employee earns $11.00 per hour as base/straight pay.
Employee earns $50.00 as a flat sum bonus for working a Saturday.
Employee works 10 hours on a Saturday.
Employees non-overtime compensation (for 8 hours of work) is $88.00 plus the bonus $50.00, or $133.00.
$133.00 divided by 8 hours worked is $16.625 (regular rate)
$16.625 times the overtime premium of 1.5 is $24.94 (overtime rate).
$24.94 times 2 hours of overtime is $49.88.
$49.88 of overtime pay plus $133.00 of non-overtime pay is $182.88 for the day.
Unfortunately, the Court stated that its ruling is to apply retroactively. All employers who have been following the federal regulations and not the DLSE’s method should contact us to discuss how to comply with this opinion.