Category Archives: Wage & Hour

There are a lot of California employees out there who are required to be on-call or work on-call hours. What is an on-call employee? An on-call employee is a one who either stays on the employer’s premises during off hours and can called to work for an immediate reason or emergency, or one who does not stay on the employer’s premises, but will still be called in to on work during their off hours by the employer during their off hours for an immediate reason or emergency. Generally, employers are required to compensate employees while they are on-call. If you are required to remain on-call during off hours, and you may not be getting compensated, you should contact an overtime lawyer.

Mediola v. CPS Security Solutions, Inc., (2015) 60 Cal.4^th 833

The defendant, CPS Security Solutions, Inc., was a security company that hired security guards to remain on-call at construction sites and provide security. While on-call, the security guard resided in a trailer on the construction site. When the security guard was not on-call, he or she would be patrolling the construction site. CPS paid the guards hourly while they were on duty patrolling the construction site, however the defendant did not pay guards while they were on-call unless there was an emergency that required the security guard to act, or if the security guard was still on-duty and was unable to be relieved. The security guards filed a class action alleging minimum wage and overtime violations for defendant’s failure to compensate them for the on-call hours.

On-Call Hours Are Generally Compensable

The case eventually worked its way to the California Supreme Court. To determine whether on-call hours should be compensated, the California courts apply the following test. On-call hours are compensable if the employee spends the time primarily for the benefit of the employer and its business. The factors to determine if the employee is spending his or her time primarily for the benefit of the employer and its business include, but are not limited to the parties’ agreement, degree to which the employee is free to engage in personal activities, whether there was an on-premises living requirement, and whether there was heavy restrictions on the employee’s movements. Considering the security guards were required to live on the construction site while they were on-call, not allowed to leave the premises while on call, and were not engaging in personal activities if required to remain at the construction site, the Supreme Court held that the security guards’ should be compensated by the defendant for working on-call hours.

If You Are An On-Call Employee And You Are Not Being Compensated, Call a Wage and Hour Lawyer

At the end of the day, Mediola v. CPS Security Solutions, Inc. reassures California employees that the state courts are still on the side of the little guy. If you are required to be on-call as a condition of employment, and you feel your employer is not compensated you fairly or properly, then call a wage and hour lawyer immediately to evaluate your situation.

Under California law, an employer is required to provide employees a 30 minute meal break during a work period longer than five hours with some exceptions. Further, an employer is required to provide a second 30 minute meal break if an employee works more than 10 hours in a day. Also, under California law, employers are required to provide 10 minute rest periods for every four hours worked by an employee. But the law for Truckers is rapidly evolving and changing, as the below case demonstrates.

In 2013, truck drivers brought a class action suit against their employer in part for failing to provide the required meal and rest breaks under California law. In May 2013, the bench trial court awarded the truck drivers damages. The employer filed an appeal.

On appeal, their employer argued that the FAAAA (Federal Aviation Administration Authorization Act) preempted California law here and thus the required meal and rest breaks did not apply to truck drivers. The employer cited to a clause which basically stated that a state may not enact or enforce a law related to a price, route or service of any motor carrier. However, the court was not convinced by the employer’s argument. Citing to a recently decided case on the same matter in the 9^th Circuit Court of Appeals (Dilts v. Penske Logistics, LLC), the court held that the FAAAA does not preempt California law when it comes to meal and rest breaks.

As the above case shows, California meal and rest break laws apply to motor carrier employers and are not preempted by the FAAAA. Therefore, if a California employer fails to provide meal breaks, the employer will be liable for one hour of pay at the employee’s normal rate of compensation for each workday the meal break was not provided. Also, if an employer fails to provide rest breaks, the employer will be liable for an extra hour of pay for each workday the rest breaks are not provided. At the end of the day, this is a huge win for employees, especially truck drivers, as it solidifies the authority California’s meal and rest break laws in the workplace.

In Alexander v. FedEx Ground Package System Inc, former FedEx drivers from California and Oregon filed lawsuits against FedEx alleging they are owed unpaid wages under state and federal law. In August of this year, the 9^th Circuit Court of Appeals reversed a lower court ruling and approved the lawsuits to move forward holding that the former FedEx drivers were in fact employees, and not independent contractors.

Alexander discusses the differences between employees and independent contractors, and the different rights and entitlements of these two groups under state and federal laws. Simply put, FedEx argued that the drivers were independent contractors and therefore not entitled to the protections and unpaid wages the group was alleging whereas the drivers argued that they were employees of Fedex, and therefore were entitled to the protections and unpaid wages they were alleging.

Independent Contractor Misclassification Standards

In determining whether workers are either employees or independent contractors, both Federal and California courts will look at a number of factors, including, but not limited to: the employer’s right to control the manner and means of the employee’s performance, the employee’s skill required to do the job, who provides the equipment and materials required to do the job, whether compensation is by time or per diem, whether the parties believe they are creating an employment or independent contractor relationship, length of time for which the services are to be performed, and whether the service rendered is an integral part of the employer’s business. It should be noted that this list is not exhaustive, it is just some of the factors courts will consider in determining whether a worker is an employee or independent contractors. The importance and weight given to each factor depends on each circumstance. But the courts often find the right to control the manner and means of the employee’s performance as the most important factor to consider.

The case held that the drivers were employees, not independent contractors. In deciding this, the Court noted a variety of factors which led to its ruling that the FedEx drivers were employees. The Court noted that the drivers wear FedEx uniforms, drive FedEx approved vehicles, and are told where and when to deliver packages. In this case, the 9^th Circuit placed substantial weight on the employer’s right to control the manner and means of employee’s performance. Essentially, because the drivers were told how to do their job, specifically what hours to work as well as when and where to make deliveries, the drivers constituted employees, not independent contractors.

At the end of the day, this is a huge win for laborers. Even though a laborer may be classified as an independent contractor, he or she may nonetheless pursue damages for unpaid wages if their job description and duties can be described as an employee. Alexander v. FedEx Ground Package System Inc. clarifies that if a laborer categorized as an independent contractor is performing as an employee, then he or she can still allege damages for unpaid wages as if he or she was an employee.

If you need assistance figuring out whether you are properly classified, contact an employment lawyer today.

Laws You Should Know – Labor Code § 227 – Branigan Robertson is a California employment lawyer who focuses his practice on wage and hour issues and wrongful termination. Call for a free consultation with one of our lawyers.

Many employees call our firm wondering about vacation pay. What do California’s employment laws have to say concerning vacation pay? If your company offers it, do they have to pay it? If you get fired and you have accrued vacation pay, does the company have to pay it in your final paycheck?

Employment Attorney & Vacation Pay

Labor Code § 227 makes it unlawful for an employer to fail to pay its employees vacation pay when it has agreed with its employees to pay accrued vacation. § 227 states:

Whenever an employer has agreed with any employee to make payments to a … vacation plan … it shall be unlawful for that employer willfully or with intent to defraud to fail to make the payments required by the terms of that agreement. A violation of any provision of this section where the amount the employer failed to pay into the fund or funds exceeds five hundred dollars ($500) shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for a period of not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine. All other violations shall be punishable as a misdemeanor.

Yikes. That is a serious statute (at least as far as employment law goes).

Vacation Pay Considered Wages

Under California law, earned vacation time is considered wages; and under Labor Code § 227.3 whenever an employment relationship ends for any reason whatsoever and the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all such earned, accrued and unused vacation.

Laws You Should Know – Labor Code § 2802 – Branigan Robertson is a CA employment attorney who focuses his practice on wage and hour issues and wrongful termination. Call for a free consultation with one of our lawyers.

There are many laws out there that employees should know. This is one of the major ones that employees should be armed with so their employers don’t take advantage of them. A company must reimburse employees for necessary business expenditures. Here is our main page on unreimbursed expenses.

Reimburse Necessary Business Expenses

§ 2802 states:

(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

(b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.

(c) For purposes of this section, the term “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.

Labor Code § 2802 Examples

What are some good examples of necessary business expenses?

• Mileage
• Supplies: such as paper, tools, pens & pencils, tape
• Parking fees
• Software & hardware
• Protective equipment
• Attorneys fees (if you are sued for issues relating to work your employer must indemnify you)

Attorney case law update – Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556. Branigan Robertson is a California lawyer who focuses his practice on wage and hour issues and wrongful termination. Mr. Robertson offers free consultations.

Employees working as retail sales representatives and customer service representatives brought a class action against AirTouch claiming the company did not properly pay its hourly workers for attending mandatory store meetings. Plaintiff’s claim defendant violated Wage Order 4-2011 by failing to pay employees reporting time pay when they attended meetings. However, the employer argued that the employee was not entitled to reporting time pay because the meetings were scheduled and the employee was paid for working the scheduled time.

Orange County Reporting Time Pay Disputes

The applicable wage order states that each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half of said employee’s usual or scheduled day’s work, the employer must pay the employee for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at the employees regular rate of pay, which shall not be less than the minimum wage. Therefore, under this rule, when work is scheduled, reporting time is owed only when an employee is not furnished with half of his or her scheduled day’s work.

Here, the meetings were scheduled and constituted scheduled work. Because the employee worked and was paid for at least half of the scheduled shift, the employee was not entitled to additional reporting time pay. The appellate court ruled that employers are not required to pay reporting time pay when meeting times are scheduled and employees work at least half of the scheduled time.

If you are looking for an attorney to handle your reporting time issue, contact our lawyers today. Mr. Robertson is a California employment lawyer who focuses his practice on wage and hour, harassment, retaliation, and termination. Mr. Robertson offers all callers a free consultation.