Employees who are required to stay “on call” before the start of a possible work shift, phoning their employer two hours before the shift to learn whether they are needed, are entitled to be paid for that two hour period regardless of whether they’re called in to work.

Employees who are required to stay “on call” before the start of a possible work shift, phoning their employer two hours before the shift to learn whether they are needed, are entitled to be paid for that two hour period regardless of whether they’re called in to work. In February 2019, the Second District Court of Appeal in Los Angeles said on-call employees are protected by the Industrial Welfare Commission’s (IWC) wage orders, that entitle employees to “reporting time pay” as soon as they are required to report to work. The employer, Tilly’s, a clothing store in Torrance, California, argued that the law mandates payment only for the hours an employee actually works. But the Court of Appeal said the law also protects workers who are required to report by phone because they are committing their time to the employer. The court went on to say that workers facing on call shifts, “cannot commit to other jobs or schedule classes during those shifts,” must make child care arrangements and have to give up time from recreation or socializing. By contrast, the court said, “unpaid on-call shifts are enormously beneficial to employers,” who can maintain a “large pool of contingent workers” and pay them only if they need them. In this case, Tilly’s required their employees with on-call shifts to call two hours before the shift would start and disciplined those workers who called in late or not at all by terminating them after three violations. The court agreed with employees that when the IWC orders were written, employees reported to work by showing up at the workplace. But the... read more

Fast-food chain Chipotle Mexican Grill, Inc. has found itself at the center of the ongoing debate over mandatory arbitration provisions in employment agreements. That debate has always assumed that arbitration clauses favor employers. However, the most recent developments in a wage-and-hour case against Chipotle have called that assumption into question.

Fast-food chain Chipotle Mexican Grill, Inc. has found itself at the center of the ongoing debate over mandatory arbitration provisions in employment agreements. That debate has always assumed that arbitration clauses favor employers. However, the most recent developments in a wage-and-hour case against Chipotle have called that assumption into question. This article was originally printed in the Recorder on January 22, 2019 By Gina M. Roccanova of Meyers Nave Riback Silver & Wilson. Fast-food chain Chipotle Mexican Grill, Inc. has found itself at the center of the ongoing debate over mandatory arbitration provisions in employment agreements. That debate has always assumed that arbitration clauses favor employers. However, the most recent developments in a wage-and-hour case against Chipotle have called that assumption into question. A federal district court judge in Colorado recently dismissed more than 2800 plaintiffs from a wage-and-hour collective action against Chipotle brought under the Fair Labor Standards Act. (Turner v. Chipotle Mexican Grill, Inc., Case No. 1:14-cv-02612-JLK). The court in that case had initially certified a class of approximately 10,000 Chipotle employees on a claim that the company required them to work off the clock and clocked them out automatically at certain times. While the case was pending, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, which upheld the legality of arbitration clauses that prohibited collective actions. As a result of that decision, the court in the Chipotle case ruled that the 2,814 class members who had signed similar arbitration agreements could not proceed as class members, but would have to pursue their claims individually in arbitration. Chipotle then sought to disqualify counsel from... read more

Winery ignores evidence against manager who sexually harassed female employees. The Los Angeles County Superior Court awards the two Plaintiffs $11 Million Dollars.

Winery ignores evidence against manager who sexually harassed female employees. The Los Angeles County Superior Court awards the two Plaintiffs $11 Million Dollars. Jury Verdict Alert.com California announced today that a Los Angeles County Winery was ordered to pay $11 Million to two female Plaintiffs who were sexually harassed by their manager. Facts and Background: Plaintiff Amber Brown worked for Keyways Vineyard and Winery for about nine months when Carlos Pineiro was hired as the new General Manager. Megan Meadowcroft was hired shortly after Mr. Pineiro started working for Keyways. Ms. Brown and Ms. Meadowcroft complained about Mr. Pineiro to Silverton Partners and Essence Business Group, the owners and managers of Keyways. After having worked at Keyways for about two weeks, Mr. Pineiro was fired. After her complaints about Mr. Pineiro, Ms. Meadowcroft was not added onto new work schedules. After he was fired, Mr. Pineiro reached out to Silverton and Essence about being re-hired, promising additional sales, connections, and better behavior. Only two months after being fired, Mr. Pineiro was re-hired as the general manager.  When Ms. Brown learned Mr. Pineiro was re-hired, she again complained to Silverton and Essence. When her complaints were ignored Ms. Brown sought and obtained a temporary restraining order.  Thereafter, Ms. Brown was put on leave and Mr. Pineiro was permitted to continue working pending the final restraining order hearing. After the restraining order was granted, Ms. Brown was never put back on the schedule despite following up with defendants multiple times. Plaintiff’s Contentions: Plaintiff Brown contended that Mr. Pineiro made numerous sexually inappropriate, unwelcome comments to Ms. Brown. He would attempt to flirt... read more

California Narrows Workers Who Will Qualify as Independent Contractors for Wage-Hour Purposes

Reprinted from an article that appeared in the Labor & Employment Blog by Robin E. Largent Yesterday, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court (Lee), adopting a very broad view of the workers who will be deemed “employees” as opposed to “independent contractors” for purposes of claims alleging violations of California’s Wage Orders.  This is a surprising decision that magnifies the risk of classifying workers as independent contractors in California and is likely to lead to increased claims challenging such classifications in this state.  This is particularly true because the Court’s decision makes it easier for plaintiffs to succeed in getting a class certified in an independent contractor misclassification case. Background Dynamex is a delivery company that provides delivery services for retail stores and for consumers.  Dynamex historically classified its delivery drivers as employees but then reclassified them as independent contractors because it was more economical.  [Note to employers: this is generally a bad idea, particularly where improving the bottom line is the stated purpose for the reclassification.]  The drivers basically performed the same work but were permitted to provide services for other companies and were permitted to hire other workers to assist them. They also had some control over the details of their delivery schedules and routes. A driver who worked for Dynamex for 15 days filed this class action lawsuit (which is now in its 13th year of litigation) alleging various wage and hour violations stemming from the independent contractor classification.  Some of the claims alleged violations of the California wage order applicable to transportation industry employees, such as... read more

Ninth Circuit Reverses Its Own Precedent and Newly Holds That Prior Salary History Cannot Justify a Pay Disparity Between Men and Women

You may recall that last year, we reported on a Ninth Circuit case, Rizo v. Yovino, wherein the Court of Appeal held that an applicant’s prior salary history is a “factor other than sex” that an employer may rely on, either alone or in combination with other factors, in setting pay rates–even though the use of that factor may result in men and women being paid different rates of pay for similar work. In so holding, the Court of Appeal relied on its own prior precedent (dating back to 1982), Kouba v. Allstate, wherein the Court expressly held that this was permissible and could not support a federal Equal Pay Act violation. Well, after issuing its decision in Rizo v. Yovino last year, the Ninth Circuit granted a petition for en banc review, and yesterday the Court issued a new decision reversing itself and overruling its own prior precedent in Kouba. Now, the Ninth Circuit has newly ruled that an applicant’s prior salary history is not a “factor other than sex” that an employer may rely on, either alone or in combination with other factors (e.g. experience, education), to justify paying an employee differently than an employee of the opposite sex for similar work. Under the new generalized rule announced by the Court, an employer may not rely on prior salary history as a factor in setting a newly hired employee’s wages. If an employer does so, and this results in a pay disparity along gender lines, the affected employees may have a valid Equal Pay Act claim against the employer. The Ninth Circuit reasoned: “Prior salary . .... read more

San Francisco Passes Ordinance Banning Salary History Inquiries

San Francisco’s Board of Supervisors has passed an ordinance that will ban employers from inquiring about an applicant’s prior salary history.  The Parity in Pay Ordinance, which is expected to be signed into law shortly by the City’s Mayor, will become operative July 1, 2018. The stated purpose of the Ordinance is to narrow the wage gap between men and women, by eliminating the practice of setting current pay rates based on prior pay rates that reflect historical gender pay differentials. The Ordinance will apply to any person applying for employment where the work will be performed within the geographic boundaries of San Francisco (including temporary or seasonal work, part-time work, contracted work, and work through a temp agency) and whose application, in whole or in part, will be solicited, received, processed, or considered in San Francisco. The Ordinance will prohibit employers from (1) directly or indirectly asking an applicant about his or her salary history, (2) considering an applicant’s salary history in making hiring decisions, or (3) considering an applicant’s salary history in deciding what salary to offer the applicant. However, if the applicant voluntarily and without prompting discloses his or her salary history, the employer may consider that information in setting the applicant’s salary (recognizing, of course, that under California’s Equal Pay Act, salary history by itself cannot be used to justify paying an applicant less than employees of another gender or race for doing substantially similar work). There will of course be monetary penalties for non-compliance and the threat of civil litigation.  The City’s Office of Labor Standards Enforcement will enforce the Ordinance, and will publish Notices... read more

California Supreme Court issues its opinion in Mendoza v. Nordstrom, clarifying California’s day of rest requirements

On 5/08/17, the California Supreme Court issued its opinion in Mendoza v. Nordstrom, clarifying California’s day of rest requirements.  These requirements are set forth in Labor Code sections 551 and 552. Section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” and Section 552 prohibits employers from “causing their employees to work more than six days in seven.”  However, Section 556 exempts employers from the duty to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”  While these provisions do not appear too complicated or hard to follow at first blush, compliance has been challenged in wage and hour litigation, raising several questions of what these provisions technically mean.  Questions that have arisen include the following: What does it mean to “cause” an employee to work more than six days in seven? Is it enough to “allow” the employee to work seven days in a row, or must the employer require the employee to work more than six days in a row to be found in violation of the statute? Is the day of rest required for any consecutive seven-day work period on a rolling basis, or is it measured based on the employer’s workweek (the definition of which varies from employer to employer and may not match a calendar week)? Does the exemption from the day of rest requirement apply where the employee works 6 or less hours on at least one day during the workweek, or must the... read more

San Francisco’s Paid Parental Leave Ordinance takes effect on January 1, 2017

On January 1, 2017, San Francisco’s Paid Parental Leave Ordinance went into effect for employers with 50 or more employees. It will be phased in for smaller employers on July 1, 2017 (35+) and January 1, 2018 (20+). The law requires private employers to provide “Supplemental Compensation” to make up the difference between a covered employee’s regular wages and the partial wage-replacement benefits provided under California’s Paid Family Leave program, administered by the Employment Development Department, when the employee takes leave to bond with a new child. The San Francisco Office of Labor Standards Enforcement (OLSE) has released rules clarifying Supplemental Compensation obligations, along with a new workplace poster, employee request form, and calculation... read more

California Supreme Court: On-Call Rest Breaks Are Not Permissible

Dec. 22 2016 Today the California Supreme Court issued a decision in Augustus v. ABM Security Services, Inc., holding that employers cannot require employees to remain “on-call” during rest breaks, even though these short breaks are part of the employees’ paid hours worked.  The Court held that the same standard that applies to off-duty meal breaks applies to paid rest break time.  More specifically, California law requires that during unpaid, off-duty meal breaks, employees must be relieved of all duties and free from employer control as to how they spend their time.  The Court today held that this is also true for paid rest break time and that an employer does not comply with this standard if it requires employees to remain “on-call,” i.e. viligant and available for possible interruption during rest breaks.  This ruling results in the potential reinstatement of a $90 million verdict against the security company, whose security guards remained on-call during rest breaks and carried radios or other communication devices in the event they needed to return to work.  Even though the record showed that breaks were rarely interrupted and that this on-call requirement was tied to the nature of the work as a security guard, the Court held that the on-call requirement invalidated the rest breaks. The Court reasoned: “Because rest periods are 10 minutes in length (Wage Order 4, subd. 12(A), they impose practical limitations on an employee‘s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will... read more

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