Protecting the rights of individuals in the workplace under CA law
# (213) 381-6557
Contact Us Today for a
Free Consultation

Archive for minimum wage

NEW YEAR USHERS IN NEW EMPLOYMENT LAWS IN CALIFORNIA

Another year, another dozen or so new laws for California employers and employees to brush up on. (It’s the most wonderful time of the year.) Here are my top three:

1. Paid Sick Leave Posting and Notice Requirements

While California’s new paid sick leave law does not go into effect until July 1, 2015, employers are required to provide notice of employees’ paid sick leave rights beginning January 1, 2015. Employers must post notice of these rights where employees can easily read it in the same manner as they do (or should do) with respect to their employees’ minimum wage, overtime, and worker’s compensation rights. Further, employers must provide newly-hired non-exempt employees with notice of their paid sick leave benefits pursuant to the Wage Theft Prevention Act Notice (Labor Code section 2810.5), or “WTPAN,” as it is referred to by . . . absolutely no one.

2. Protection for Unpaid Interns and Volunteers Under FEHA

Assembly Bill 1443 closes a pretty egregious loophole exempting unpaid interns and volunteers from the discrimination, harassment and retaliation protections of the California Fair Employment and Housing Act. AB 1443 extends such rights to unpaid interns and volunteers.

3. Extended Statute of Limitations on Liquidated Damages for Minimum Wage Violations

Assembly Bill 2074 clarifies that the statute of limitations for liquidated damages stemming from minimum wages violations under California Labor Code sections 1197.1 and 1194.2 is the same as the underlying minimum wage violations themselves, three years. Previous case law had suggested that these liquidated damages were penalties and thus subject to a one-year statute of limitations.

Please contact the Leichter Law Firm, APC located in Los Angeles, California to learn more about your legal rights in the workplace.

Minimum Wages Make Waves in Midterm Elections

As reported in the Wall Street Journal, voters in four states on Tuesday approved ballot measures to increase the minimum wages paid to the lowest earning workers in Alaska, Arkansas, Nebraska, and South Dakota. Illinois also approved a symbolic, non-binding measure which will have no effect on the current law.

In San Francisco, a ballot measure to raise the minimum wage from $10.74 per hour to  $15 in 2018 also passed. The minimum wage in California is currently $9.00 and will increase to $10 by 2016.

 

Time Warner Cable Gets Served by California Supreme Court in Peabody

Chalk one up for the little guy. In Peabody v. Time Warner Cable, Inc. _____ Cal.4th ___ (July 14, 2014), the Supreme Court of California directly addressed “whether an employer may attribute commission wages paid in one pay period to other pay periods in order to satisfy California’s compensation requirements.” (Spoiler alert: the answer is no.)

Between July 2008 and May 2009, Plaintiff Susan Peabody (“Ms. Peabody”) was a commissioned account executive for Time Warner Cable (“Time Warner”) selling advertising on Time Warner’s television channels. Ms. Peabody regularly worked 45-hour weeks for which she was never paid overtime. Excluding commissions, she earned less than the minimum wage during weeks in which she worked more than 48 hours. As a result of Time Warner’s implementation of a new compensation plan in March 2009, she was not paid all commissions owed on her January and February 2009 sales and thus did not meet the pay requirements for a “commissioned employee” exemption during these periods.

Time Warner argued that it should be able to allocate Ms. Peabody’s commissions over the course of a month. (Side note: Isn’t that just so classically Time Warner Cable? “Please be prepared to have your commissions allocated between the days of the 1st and the 31st of this month.”). The Supreme Court did not buy this argument, citing California Labor Code section 204(a)’s clear directives that all wages, including commissions, must be paid “no less frequently than semimonthly.”

Alternatively, Time Warner argued that it should be able to allocate employee commissions according to the pay periods in which the commissions were earned not paid. The Supreme Court rejected this argument as well, choosing to narrowly construe the commission exemption language against the employer in order to protect the employee.

Now if only they would do something about those appointment schedules.

The entire opinion can be found here:

Von Nothdurft Decision a Game Changer for California Resident Managers

Residential apartment managers in California just can’t seem to catch a break. As licensees, they are not afforded the broad legal protections of tenants living at the same property. They are required to be on call 24/7 but are only entitled to compensation for actual hours worked. And they often work far more hours than they are paid for but lack the documentation to prove it.

Until recently, Industrial Wage Order No. 5-2001 (“IWO 5-2001), which regulates the wages, hours, and working conditions of resident managers, was their one saving grace. Under Section 10(C) of the order, an employer cannot credit the value of a resident manager’s apartment “against the minimum wage without a voluntary written agreement between the employer and the employee.”

On June 26, 2014, however, the California Court of Appeal in Von Nothdurft v. Steck, ___ Cal.App.4th ___, significantly weakened this protection. Von Nothdurft is the first state court case certified for publication that addresses what language needs to be included to qualify as a “voluntary written agreement” under IWO 5-2001. The court’s ruling? Far less than previously thought and less than the plain language of the order seems to require.

In Von Nothdurft, Plaintiff Brenda Leigh Von Nothdurft (“Ms. Von Nothdurft”), an apartment manager for a property owned by Defendant John Steck (“Mr. Steck”), signed a management agreement stating her compensation would include “free rent for her apartment.” At the time of the agreement, neither Ms. Von Nothdurft nor Mr. Steck was aware of the requirements of IWO 5-2001.

Ms. Von Nothdurft argued the agreement did not satisfy the requirements of IWO 5-2001 because it did not reference the minimum wage or any apartment rent credit. This interpretation of “voluntary written agreement” was adopted by the Department of Labor Standards and Enforcement (2002 Update of the DLSE Enforcement Policies and Interpretations Manual, at § 45.4.5) and a California federal district court in Brock v. Carrion, Ltd. (E.D. Cal. 2004) 332 F.Supp.2d 1320, 1330 (2004).

The Van Nothdurft court didn’t buy it:

Wage Order 5 does not define the phrase “voluntary written agreement” as used in subdivision 10(C) or otherwise specify that any particular terms must be included in such an agreement to permit a valid lodging credit – it requires only a “voluntary written agreement between the employer and the employee” without qualification. Under its plain terms, no express reference to a credit toward minimum wage, statement that the employee is entitled to minimum wage for every hour worked, or the precise amount to be credited, need be included as long as the parties understand and agree – as they did here by entering into the management agreement – that lodging is to be credited toward the employee’s compensation. Since the wage order’s language is clear, we apply it without further interpretation.

Interestingly, the court in Brock read the same “plain” language to reach the opposite conclusion: “Consistent with the statutory language, the DLSE requires that the written agreement explicitly reference that such credits are being applied toward the minimum wage obligation of the employer.” Brock v. Carrion, Ltd. (2004) 332 F. Supp. 2d 1320, 1330.

The interpretation adopted by the DLSE and the Brock court is the far more sensible one. Under IWO 5-2001, a voluntary written agreement is a condition precedent to validly crediting the employee’s lodging against the minimum wage (“…lodging may not be credited against the minimum wage without…”). This language clearly implies that the agreement must in some way relate to the employer’s minimum wage obligation.

Under Von Nothdurft, an agreement between employer and employee having nothing to do with the employment relationship would qualify as a “voluntary written agreement” as long as it was in writing and signed by the parties. The holding defies common sense and undermines the very purpose of the wage order—to inform the resident employee of her rights under the Labor Code and to protect those rights.