Wage & HourGuadalupe Mireles & Elisa

Valenzuela

Need to know...

● Specific wage Order for industry

● Daily & Weekly OT rates

● Exempt vs. Nonexempt● Vacation Pay, PTO -

wages● Ensure employees are

paid in an authorized manner and proper

itemized wage statements

California Supreme Court Cases● Peabody v. Time Warner● Mendiola v. CPS Security● Brinker Restaurant Corporation

v. Superior Court

Peabody vs. Time Warner, Inc

Susan Peabody - Account executiveBi-weekly $769.23 or $9.61/hour

Time Warner paid commissions monthly in the last bi-weekly check of each calendar month

Peabody worked 45 hours or more

Time Warner did not pay OT because they classified her and others as exempt under California’s “commissioned sales” exemption

Commissioned Sales - I.W.C. Wage Order 4-2001

Employee's earnings must exceed 1 ½ times CA min wage

More than half of employee’s compensation must consist of commissions rather than other forms of pay

All earned wages, including commissions, must be paid no less frequently than semimonthly

ConclusionCourt rejected Time Warner’s allegation that their pay system was

supported by federal law (FLSA) which does not require employees be paid twice a month

Court ruled Time Warner could rely on commission exemption for pay period in which paychecks included a commission payment with base pay

Court was in favor for Peabody’s minimum wage in that her paychecks included only base pay of $384.61 per week ($20,000 annual) which was not enough to compensate her at $8 an hour in any week for hours over 48.1

If your company pays commissions and or other compensation plans, please review your practices

Mendiola v CPS Security Solutions, Inc.CPS security solutions - provides security services at construction sites

Trailer guards who spend the night at the assigned job site in residential trailers.

Tim Mendiola signed on-call agreement

8 hours per day generally 9 PM - 5 AM as on-call hours

Weekends - 24 hour shifts; 16 hours of active patrol and 8 hours on-call

Allowed to leave job site only if they notified dispatcher, provide information regarding his or her whereabouts with a cell phone and maintain a 30 mile radius.

Could engage in personal activities in the trailers

No children, alcohol, or pets

Adult visitors were permitted, but only if they were authorized by the company’s clients

Plaintiff sues for unpaid wages & overtime

Industrial Wage Order 4 - “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so”

Does not provide any exclusion for sleep time from hours worked

Wage Order 5 & 9 have specific sleep-time exclusions

CPS urged Supreme Court to include sleep time into Wage Order 4

Court decision: on-call time constituted compensable hours worked because CPS exercised significant control. Mendiola was subject to minimum wage and overtime provisions.

Brinker Restaurant Corporation v. Superior Court

Resulted after the DLSE’s investigation on Brinker.Complying with its obligations to provide rest & meal breaks to its employees.

Maintaining proper records

Investigation was settled with a $10 million payment from Brinker

In 2004 Employees filed suit against Brinker.Employees alleged they were forced to work through their rest and meal breaks.

Central issue in the case was whether the employer must ensure that employees take meal and rest breaks or if it was sufficient that they made the rest and meal breaks available.

Court Ruling

Employers have the obligation to provide employees with a meal break. Obligation is satisfied if:

Break is at least 30 minutes uninterrupted.The employee is relieved of all duty for the whole period.

Is allowed to leave the premise.The employee is not discouraged from taking the break.

Employers have the obligation to authorize and provide rest periods.10 minutes in the middle of workday.On the clock10 min for 3.5 - 6 hrs, 20 min for 6 - 10 hrs, 30 min for 10 - 14 hrs.

Paola LaverdeDIR Communications: Public Informations

Officer

Regarding to wage and hour, what is the most frequent violation committed by employers?

“Wage theft and it’s one of the costliest crimes in America.. According to a 2014 study by the Economic Policy Institute, wage theft is an epidemic and costs workers across the nation 50 billion dollars a year. As a comparison, in 2012, the combined total of all robberies, burglaries, larcenies, and motor vehicle thefts nationwide cost victims 14 billion dollars. The California legislature has passed several laws protecting workers, including the Wage Theft Protection Act. California Labor Law says employers must provide their workers with the required rest and meal periods, overtime pay, and pay stubs. If not, workers can file wage claims at their local Labor Commissioner’s office.”

With new wage laws being implemented every year, as an employer what is the best procedure to take to make sure

you’re in compliance?

“Pay attention and know your responsibilities as an employer. If an employer has a question regarding news laws, they are invited to visit the DIR website at www.dir.ca.gov. Employers can also call 1-866-LABOR-DIR, DIR’s call center with any questions they might have regarding labor laws and their responsibilities as employers or they can call directly to their nearest Labor Commissioner’s office, here’s the list of the offices statewide and they can also visit the WAGETHEFTISACRIME.COM website to find out more about worker rights and employer responsibilities. It’s also important for employers to know that as cities and counties raise the minimum wage faster than the state, the local ordinance takes precedence over the state law, it’s the wage the benefits the employee most. This is happening in the Bay Area and in Los Angeles County.”

What is the biggest recommendation for an H.R. professional who is soon to enter the workforce?

“Be aware of California’s labor laws. Know what the employer’s responsibilities are when hiring, firing or laying off employees. Although you may be working for a company and trying to tow its line, California’s labor law needs to be followed.”

With the minimum wage increase over the next several years, do you think there will be an increase in wage and hour violations?

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