E-Blasts

On Monday, in a split decision, the California Court of Appeal Second District ruled that employees who are required to call in before an on-call shift, but never physically report to work, may be entitled to reporting time pay.

Plaintiff Skylar Ward (“Ward”) worked for Tilly’s, a retail clothing store with locations throughout California and the United States. In 2012, Ward worked as a sales clerk at the Torrance, California location. During her employment with Tilly’s, plaintiff and other employees were scheduled to work a combination of “regular” and “on-call” shifts (also referred to as “call-in” shifts”). For on-call shifts, Tilly’s required that employees call the store two hours before the start of their on-call shift (or by 9:00 p.m. the night before if their on-call shift was scheduled to begin earlier than 10:00 a.m.) to ascertain whether or not they would come into work that day depending on the foot traffic at the store. Tilly’s told employees that they should consider their on-call shift a “definite thing” until they are actually told they do not need to come in and were disciplined if they failed to contact their stores before on-call shifts. Importantly, and the crux of this case, is that employees were only paid if they were required to actually come into the store and work.

Federal regulations require that the minimum wage for H-2A employees is the highest of (1) the Adverse Effect Wage Rate (“AEWR”), (2) the prevailing hourly or piece rate, (3) the agreed upon collective bargaining wage rate, if applicable, or (4) the state or federal minimum wage. Often, the highest rate is the AEWR, a rate specifically set by the Department of Labor for each state as the minimum to be offered to H-2A workers.

On Monday, a California state appellate court upheld the dismissal of a proposed representative lawsuit under the Private Attorneys General Act that accused the supermarket chain WinCo Foods, LLC (“WinCo”) of forcing their employees to work through required meal breaks. As almost all employers are aware, an employer cannot force an employee to work more than five hours without providing a thirty minute meal period. The required meal period may be waived by mutual consent of both the employer and employee if the total work day is not more than six hours.

Last week, a California court awarded a former employee $2,250 in waiting time penalties after the employee quit her position and the employer sent her a final check in a timely fashion, but with a single typo. In Nishiki v. Danko Meridith, APC, Taryn Nishiki worked for Defendant Danko Meridith as an office manager and paralegal. Nishiki resigned by sending an email to Defendant on a Friday night after hours. At the time Nishiki resigned, she was owed $2,880.31 for unused vacation (“PTO”) time.

Yesterday, a California appellate court ruled that an employer who fully complied with AB 1513’s safe harbor provision has an affirmative defense against any employee claims for failure to properly compensate piece-rate employees for rest and recovery (“R+R”) and/or other nonproductive time (“Other NPT”) for any time periods prior to and including December 31, 2015, and not just between July 1, 2012-December 31, 2015.

Today, the California Supreme Court dealt a potentially huge blow to employers as it ruled that California wage and hour laws do not support a “de minimis” argument to excuse payments of wages for small amounts of otherwise compensable time upon a showing that capturing that time, typically at the beginning or end of work shifts, is administratively difficult to record. 

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