Wage & Hour

Employers should be aware that paying an employee a regular salary does not make that employee exempt from overtime laws.  California Labor Code Section 515(d) provides that overtime for a nonexempt full-time employee is to be calculated using a regular hourly rate that is 1/40th of weekly salary. 

           The proposed legislation to increase the minimum wage was amended yesterday. AB 10 was introduced by Assembly Member Alejo (D-28^th Dist) in December, 2010. The bill would increase California’s minimum wage to $8.50 per hour, and automatically increase the minimum wage every year. The automatic increase would be based on inflation, using the California Consumer Price Index.

Employees are allowed up to two paid hours time off at the beginning or end of their regular working shift to vote. An employee must provide notice at least two working days in advance of the election if, on the third working day prior to the election, the employee knows or has reason to believe there will be a need for time off to vote.

          On Tuesday, October 12, 2010, the Internal Revenue Service announced that it will waive for one year a health care reform law requirement that employers report the cost of coverage on employees' W-2 wage and income statements.

The following article is the third and final installment of a three-part series relating to Health Care Reform provided to you by The Saqui Law Group and Barkley Insurance and Risk Management.  The Saqui Law Group wishes to thank Ed McClements, Senior Vice President of Benefits for Barkley Insurance and Risk Management, for his contributions to this article.

          The Patient Protection and Affordable Care Act was signed into law by President Obama on March 23, 2010.  In Part 1 of this series we updated you on the significance of September 23, 2010.  In Part 2, we provided you with a summary of how two reforms relate to dependents of employees and preventative health care.  Finally, consider yourself informed about the basics of health care reform once you familiarize yourself with some more frequently used terminology, W-2 reporting requirements, and whether employers really have to provide benefits to employees.

ELMO CAN COUNT 1-2-3, SO SHOULD EMPLOYEES

          We’ve all been there during algebra class and wondered aloud – why are we learning this and when will we ever need to use it? Well, it appears that some employees have taken that idea a step further and have demanded that employers calculate similarly complex numbers – total hours worked.

            On Monday, September 27, 2010, the Ninth Circuit issued an opinion in Wang v. Chinese Daily News, Inc., a case which addresses class certification of wage related claims as well as the meaning of “provide” when it comes to an employer’s obligation to provide meal breaks to employees.  Interestingly, the Court stated that the Brinker case pending before the California Supreme Court is irrelevant, finding that, even if the California Supreme Court interprets only a minimal obligation on employers to provide meal breaks, there was sufficient evidence in this case to show that the employer did not provide any meal breaks at all.

          A recent survey of hundreds of employees revealed that Chinatown restaurants in San Francisco routinely pay workers less than the minimum wage.  The survey, conducted over the course of two years, involved over 400 employees, more than half of whom reported that they were being paid less than the San Francisco minimum wage, which is currently $9.79 an hour. 

          Walt Disney World recently learned a lesson that all employers should take note of: employment policies are essentially worthless if they are not properly implemented.  The Labor Department’s Wage and Hour Division found that from January 2008 through January 2010, 69 individuals employed as inventory control clerks in the food and beverage department of Walt Disney Parks and Resorts in Orlando, FL were not being paid for work activities that occurred before and after their normal shifts, work they conducted from home, or work performed through their meal times.  The U.S. Department of Labor announced that as a result of numerous Fair Labor Standards Act (FLSA) violations, Walt Disney owed $433,819 in back wages.

          Add RadioShack to the list of employers eagerly awaiting the decision in Brinker Restaurant Corp. v. Superior Court, currently pending before the California Supreme Court.   In an unpublished opinion on August 26, 2010, the Second District Court of Appeal in Brookler v. Radioshack Corp., B212893, 2010 WL 3341816 (Cal. Ct. App. 2d Dist. August 26, 2010), reversed an order in favor of RadioShack and held that, unless and until the Supreme Court in Brinker holds otherwise, “an employer’s obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory—it must also provide them as a practical matter.”