Wage and Hour

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On September 27, 2021, California Governor Gavin Newsom signed SB 62, also known as the Garment Worker Protection Act, into law.  SB 62 makes California the first state to require an hourly minimum wage for garment workers by banning piece rate pay.  SB 62 expands the definition of a garment manufacturer and extends the scope of liability for wage and hour violations to clothing brands—and likely some retailers.  Under SB 62, “any person contracting for the performance of garment manufacturing” is joint and severally liable with any of their manufacturers and contractors, thus creating upstream responsibility for unpaid wages, attorney’s fees, and civil penalties arising from Labor Code violations.  Although the new law does not become effective until January 1, 2022, companies that contract or subcontract for garment manufacturing, or have employees who perform garment manufacturing functions in California, should begin familiarizing themselves with SB 62 and determining whether/how it affects their business.
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Continue Reading California Passes Law Establishing New Wage and Hour Requirements for Employers in the Garment Industry

To close out the 2021 legislative season, Governor Gavin Newsom signed dozens of bills into law, many of which directly affect California employers.  In addition to the coverage in prior blog posts, which are linked below, this article provides an overview of key new employment laws.
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Continue Reading 2021 California Legislative Update: California’s New Employment Laws

On September 27, 2021, California Governor Gavin Newsom signed Assemblywoman Lorena Gonzalez’s Assembly Bill 1003 into law.  This new legislation establishes that intentional theft of wages or tips by employers is punishable as grand theft.  The law takes effect on January 1, 2022.
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Continue Reading New California Law Imposes Harsh Penalties for Employers Committing Intentional Wage Theft

On Monday, the Ninth Circuit vacated a judgment for Grubhub, Inc. and against a former food delivery driver, Raef Lawson, who claimed that he was misclassified as an independent contractor when he performed food delivery services.  Lawson had asserted claims for minimum wage, overtime, and expense reimbursement.
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Continue Reading Ninth Circuit Reversed Grubhub’s Victory on Independent Contractor Classification in Light of the Retroactive Application of Dynamex

On July 15, 2021, the California Supreme Court issued a decision in Ferra v. Loews Hollywood Hotel, LLC which was long-awaited but was ultimately highly disappointing to employers.
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Continue Reading California Supreme Court Announces New Standard That Meal and Rest Period Premiums Must Be Paid at Same “Regular Rate of Pay” Used to Calculate Overtime Payments

A former Wal-Mart employee had his $102 million dollar verdict overturned in a recent win for California employers.  Roderick Magadia, the former employee, brought a class action and Labor Code Private Attorneys General Act (“PAGA”) complaint against Wal-Mart alleging, in part, that Wal-Mart issued deficient wage statements in violation of Labor Code Section 226.  The alleged defect was prompted by a “Myshare” bonus, a quarterly bonus based on non-discretionary metrics.  Because the bonus was non-discretionary, the law required Wal-Mart to factor the bonus into the “regular rate” of pay used to calculate the overtime premium.  But, since the bonus was earned and paid quarterly while the overtime premium on hourly pay is paid during every two-week pay period, the premium must be recalculated and adjusted with a supplemental payment each quarter.
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Continue Reading Sheppard Mullin Helps Overturn $102 Million Dollar Verdict

In a decision of considerable significance in the world of wage and hour litigation, the United States Court of Appeals for the Fifth Circuit significantly departed from conventional standards for assessing conditional certification under Section 216(b) of the Fair Labor Standards Act (“FLSA”).  In Swales v. KLLM Transport Services, Inc., the Fifth Circuit rejected the conditional certification process entirely and drastically altered the procedure for assessing whether potential members of a collective action under the FLSA are “similarly situated.”…
Continue Reading Fifth Circuit Shuts Down FLSA Conditional Certification

In Garcia v. Haralambos Beverage Co., the California Court of Appeal embraced the adage “time kills all deals” to conclude that an employer waived its right to arbitrate the wage-hour claims at issue in the case by, among other things, delaying two years to seek arbitration as a last resort and waiting to locate the plaintiffs’ signed arbitration agreements.  By waiving its right to arbitrate, the employer also lost its ability to strike class claims as a result. …
Continue Reading Delaying Enforcement of Arbitration Agreements May Lead to Undesirable Consequences

After a decade of ups and downs on the question of federal preemption, the Ninth Circuit Court of Appeals has upheld the Federal Motor Carrier Safety Administration’s (“FMSCA”) decision to preempt California’s meal and rest break rules.  The long-awaited decision in IBT v. FMCSA upholds the FMSCA’s December 2018 determination that drivers, who are involved in interstate commerce and subject to federal hours-of-service regulations, are exempt from California’s stringent meal and rest break rules because they are “incompatible” with federal regulations.  “The FMCSA reached this conclusion because California required more breaks, more often and with less flexibility as to timing,” the Court’s three-judge panel said in its January 15 opinion.…
Continue Reading The Ninth Circuit Puts the Brakes on Truckers’ California Meal and Rest Break Claims

On January 1, 2021, various new and amended employment laws will go into effect in California. Below is a summary of some of these laws that employers should make themselves aware of heading into the new year.  All laws discussed in this post go into effect on January 1, 2021, unless otherwise noted.…
Continue Reading New Employment Laws to Look Out for in 2021

In Alfredo Sanchez v. Miguel Martinez, the Court of Appeal, Third Appellate District, held that although an employee who is not authorized and permitted to take a paid 10-minute rest break in compliance with California law may assert a claim for either unpaid wages or seek one additional hour of pay (i.e., a rest break premium) under Labor Code Section 226.7, the employee cannot recover damages under both theories.  All California employers will find this case instructive, as it may also provide a basis to argue against similar “double recovery” and/or “stacking” of penalties predicated on other Labor Code violations.
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Continue Reading Employees Cannot Obtain “Double Recovery” of Unpaid Wages and Premiums for Non-Compliant Rest Breaks