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The California Supreme Court “get’s it” - it’s all about protecting your wages

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Time and again the California Supreme Court has held in favor of protecting workers in wage and hour decisions. 
 
There are three main sources of California employment law - the California Labor Code, the California Wage Orders and the California Courts interpreting and enforcing these laws.
 
Without a doubt, the California legislature has adopted strong worker protection statutes and the Industrial Welfare Commission has adopted strong Wage Orders that protect the wages, hours and working conditions of California employees.
 
But make no mistake about it, the California Supreme Court has worked tirelessly in opinion after opinion to protect California workers. The California Supreme Court has repeatedly stated that California’s wage laws are to be liberally construed to protect workers. 
 
In this article, I show you how  the following California Supreme Court cases: Brinker, Ayala, Peabody, Iskanian, Mendiola, Kilby, Augustus, Williams, Alvarado, Dynamex, and Troester;   all stand for the proposition that the California Labor Code and California’s Wage Orders must be interpreted liberally in order to protect workers. 
 
Yes, the California Supreme Court not only "gets it," it's also abundantly clear that their hearts are in the right place. They really seem to care about people. About working folks like you. 
 
If you don't believe that, they I suggest that you check out these 11 California Supreme Court cases since Brinker was decided in 2012.  Here is one of my favorite excerpts: 
 
... a few  extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to  $102.67 at a wage of $ 8 per hour. That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.
Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 847. 
 
Or even "add up" to buy a few Christmas presents for your children.  When I grew up, I lived in a trailer for a while. Like many of my clients, I have seen how a few hours pay here and there add up.
 
When you factor in all paycheck stub violations, PAGA penalties and waiting time penalties, $102.67 can result in thousands of dollars in wages owed. Yes, the California Supreme Court gets it alright. 

Why this is important to you 

While the law is sometimes black and white, there is often, or even usually, a lot of gray. Meaning, that if your case fits the facts of one the California Supreme Court cases that are discussed in this article, then you are probably going to prevail in your wage case. 
 
What you can expect, however, is for the employer in your case to argue that the facts and/or evidence in your case is distinguishable from these cases and thus you should not prevail in your wage case. 
 
Invariably you are going to have your wage and hour class action case and/or PAGA case (I explain more about PAGA in this article) in front either a Judge or a mediator. 
 
You (or more accurately, your lawyer) will end up in a discussion as to how the California Supreme Court would rule on an issue related to these cases or even on a different legal issue related to California wage law.
         
In these instances, it is helpful to be armed with a good working knowledge of how the California Supreme Court has protected workers’ wages and working conditions.  
 

In this article I cover all of the recent (post - Brinker - 2012) California Supreme Court cases that have protected workers' wages, hours and working conditions. 

 

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What makes this all worthwhile - when employees receive their checks for unpaid wages!

 

Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text. 

Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

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Brinker (2012) 

California laws regarding wages, hours and working conditions are to be liberally construed to protect workers, the duties employers have in providing meal periods

Putting aside the all the great substantive law protecting California workers that has came out of the landmark California Supreme Court case - Brinker vs. Superior Court, the Brinker case is fundamentally about enforcing California’s strong worker protection laws.
 
One of the strong worker protection concepts in the Brinker decision is:

 
In light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are  to be liberally construed with an eye to promoting such protection.
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026-1027.
 
This means that California’s Wage Orders and Labor Code are to be interpreted liberally in order to protect workers.
 
I know the Brinker case very well, because I represented the workers in the historic Brinker Supreme Court case.
 
Brinker was a landmark decision, protecting workers. Brinker was perhaps the most important California Supreme Court case ever. Because out of Brinker, flowed all of the other decisions (which are discussed in this article). 
 
Importantly, everyone of the foregoing decisions (except the Iskanian case) cite the Brinker case. That is not an accident. 
 
Brinker wasn’t about abstract theory in order to protect workers, Very important substantive law came out of the Brinker. 
 
In the Brinker case, the California Supreme Court laid out the duties that employers must provide employees for meal breaks
 
“An employer's duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if:
 
  1.  It relieves you of all duty,

  2.  Relinquishes control over you activities and

  3.  Permits you a reasonable opportunity to take an uninterrupted 30-minute break, and

  4.  Your employer does not impede or discourage you from doing so.
 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040. 
 
If an employer fails to meet their duty an employee is entitled to an hour’s pay under California Labor Code Section 226.7.
 
As a quick side note
 
I know it's a lot to proclaim the Brinker case as "the most important California Supreme Court case ever."  I realize that. Forever is a long time. And I may ne a little biased because Brinker was my case. I was the very first lawyer on the Brinker case.
 
However, in this instance, the proof is in how many times other cases have cited the Brinker decision. While I may have overlooked a case (it wasn't from lack of looking); but it seems to me that the Brinker case has been cited more than any other California wage case. Meaning, more published legal opinions have cited the Brinker case than any other California wage case.  So, there you go. 


Ayala v. Antelope Valley Newspapers (2014)

Ayala - the right to control and not the extent of its exercise, gives rise to the employer-employee relationship

Ayala is a California Supreme Court case where a wage and hour action was filed on behalf of newspaper carriers who had been hired by the Antelope Valley Press (Antelope Valley) to deliver its newspaper. The carriers alleged that Antelope Valley had misclassified them as independent contractors when they should have been treated as employees. 
 
The trial court in Ayala had denied the plaintiffs' motion to certify  the action as a class action on the ground that under the Borello test—which, at the trial level, both parties agreed was the applicable standard—common issues did not predominate because application of the Borello standard “would require ‘heavily individualized inquiries’ into Antelope Valley's control over the carriers' work.”  Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 529 (2014). 
 
The California Supreme Court in Ayala issued an opinion that helped workers, holding that  the trial court should not have denied class certification on the basis that there were individual variations in whether the newspaper exercised control and that control was not pervasive because the relevant inquiry was whether the newspaper's right of control over its carriers, whether great or small, was sufficiently uniform to permit classwide assessment. 
 
The Supreme Court in Ayala held that under the Borello multifactor test control over how a result is achieved lies at the heart of the common law test for employment. S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 350 (1989). Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 529, 533 (2014). 
 
The Ayala court stated: “Significantly, what matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise. The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 529, 533 (2014).
 

Why is Bill Turley asked to testify concerning

wage law legislation at the California State Senate

 and the California Assembly?  

California's Leading Wage Class Action Lawyer - Bill Turley

Because Bill is known as a No B.S. straight-shooter lawyer

 Believe it or not, Bill is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straightforward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.

 

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Peabody v. Time Warner (2014)

Peabody - an employer may not assign wages to a different pay period in order to meet the requirements for a commission employee to be exempt and California wage law does not follow federal wage law

 
In another pro-worker decision, in Peabody v. Time Warner, the California Supreme Court  held that an employer may not attribute commission wages paid in one pay period to other pay periods in order to satisfy California's compensation requirements. It is not permissible to use a monthly pay period because under Labor Code Sections 200(a) and  204(a), all earned wages, including commissions, must be paid no less frequently than semimonthly, with limited exceptions. 
 
Further, commission wages paid in one biweekly pay period may not be attributed to other pay periods to satisfy the minimum earnings prong of the commissioned employee exemption to the overtime law (Lab. Code, § 510). Therefore, the employer could not, for example, attribute commissions paid at the end of November to the four workweeks in October. Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 668-670.
 
Importantly, the California Supreme Court in Peabody held that employer’s reliance on Federal law in interpreting California wage laws was misplaced.  In Peabody, the employer contended that federal law permits the sort of wage attribution it advocated, and it urged the California Supreme Court to follow suit. The California Supreme court held:
 
 Although it is true that the commissioned employee exemption has a federal counterpart in 29 U.S.C. section 207(i), “[w]e have previously cautioned against ‘confounding federal and state labor law’ … ‘… where the language or intent of state and federal labor laws substantially differ.’ ” (Martinez v. Combs, (2010) 49 Cal.4th 35, 68.) Unlike state law, federal law does not require an employee to be paid semimonthly... It also permits employers to defer paying earned commissions so long as the employee is paid the minimum wage in each pay period... In light of these substantial differences from California law, reliance on federal authorities to construe state regulations would be misplaced.
 
In conclusion, we hold that an employer satisfies the minimum earnings prong of the commissioned employee exemption only in those pay periods in which it  actually pays the required minimum earnings. An employer may not satisfy the prong by reassigning wages from a different pay period.
Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 669-670.
 
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Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text. 

Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

Or leave us a message on this webpage 

 

Iskanian (2014)

A PAGA claim does not interfere with arbitration and is not preempted by the FAA

 
In understanding the Iskanian  case, you first need some background. Specifically how the United States Supreme Court decided to shut down class action lawsuits. So, we need to backup a tad and discuss the U.S. Supreme Court Concepcion case. 
 
The case involved Vincent and Liza Concepcion, who purchased a cell phone from AT&T Mobility. The form contract they signed provided for arbitration of all disputes between the parties. AT&T had advertised that the phones were free but charged the Concepcions $30.22 in “taxes.”
 
Concepcion overturned a Ninth U.S. Circuit Court decision invalidating a consumer cell phone contract that barred class arbitration. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).
 
In Concepcion, the United States Supreme Court held that class actions were inconsistent with the fundamental nature of arbitration and imposed practical burdens which undermined the efficacy of arbitration. Hence, the US Supreme Court held class action waivers in arbitration agreements were enforceable under the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), and any contrary state statutes or rules of law which interfered with the enforceability of those waivers were preempted by the FAA. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 351–352 (2011).
 
The US Supreme Court's 5-4 decision in Concepcion  prevents consumers from bringing class-action suits against corporations is all part of the scheme of the US Supreme Court to protect American companies from class action lawsuit and take away the keys to American juries and American justice protecting injured consumers.  Make no mistake about it - the fix is in. You have been screwed. 
 
The Supreme Court’s  decision in Concepcion is “nothing other than a conservative majority favoring the interests of businesses over consumers, employees and others suffering injuries,” according to UC Irvine School of Law dean Erwin Chemerinsky in an op-ed in the Los Angeles Times.
 
I suggest you readArbitration Everywhere, Stacking the Deck of Justice- the New York Times article that details how the scheme to have the FAA trump the United States Constitution was concocted. It is truly eye-opening. 
 
It is with this backdrop of the U.S. Supreme Court taking away consumer rights that helps one really appreciate the worker friendly California Supreme Court’s wage and hour decisions.
 
Shortly after Concepcion was decided, in Iskanian, the California Supreme Court found that an employee's prior agreement to waive the right to bring a “‘representative action’” does not prevent an employee from bringing a PAGA action. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 387–388 (2014). 
 
Note: PAGA stands for Private Attorney Generals Act. A PAGA action is fundamentally a law enforcement action designed to protect the public and penalize employers for past illegal conduct. Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009). 
 
The aggrieved employee acts as a Private Attorney General to collect penalties from employers who violate State unpaid wage laws. Franco v. Athens Disposal Co., Inc., 171 Cal. App. 4th 1277, 1283 (2009); Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009). 
  
An employee plaintiff suing under the Labor Code Private Attorneys General Act, does so as the proxy or agent of the state's labor law enforcement agencies. The act's declared purpose is to supplement enforcement actions by public agencies, which lack adequate resources to bring all such actions themselves. Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009).
 
The California Supreme Court in  Iskanian found that an employee's right to bring a PAGA claim was not waivable and that in preventing any waiver the PAGA did not conflict with and was not preempted by the FAA. The California Supreme Court analogized a PAGA action to qui tam actions, in which a private party brings an action on behalf of a governmental agency.
 
“A PAGA representative action is therefore a type of qui tam action. ‘Traditionally, the requirements for enforcement by a citizen in a qui tam action have been (1) that the statute exacts a penalty; (2) that part of the penalty be paid to the informer; and (3) that, in some way, the informer be authorized to bring suit to recover the penalty.’  The PAGA conforms to these traditional criteria, except that a portion of the penalty goes not only to the citizen bringing the suit but to all employees affected by the Labor Code violation. The government entity on whose behalf the plaintiff  files suit is always the real party in interest in the suit.” Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 382 (2014).  
 
The California Supreme Court in Iskanian was very cognizant of the United States Supreme Court's holding in Concepcion. Thus, the California Supreme Court in Iskanian took some pains to illustrate how a PAGA claim did not interfere with arbitration and hence was not preempted by the FAA.
 

Mendiola v. CPS Security (2015)

Under California law - employers must compensate employees for all time worked, including on call time and sleep time and California wage law does not follow federal wage law

 
Mendiola is another worker protection California Supreme Court case. Mendiola involved California wage and hour claims brought by security guards who regularly patrolled construction sites for eight hours on weekdays and sixteen hours on weekends, and who were required to reside,  uncompensated, in an employer-provided trailer for eight hours after each shift and remain on-call. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 837. 
 
The Supreme Count in Mendiola held that these on-call hours were "hours worked" for the purposes of California's Wage Order 4, and that the employer "could not exclude 'sleep time'" from the compensable hours in the security guards' 24-hour shifts. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838.  The fact that guards could engage in limited personal activities does not lessen the extent of CPS's control. It is the extent of employer control here that renders on-call time compensable hours worked under Wage Order 4. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 842. 
 
In reaching this result, the California Supreme Court rejected the employer's argument that federal DOL regulations furnished the appropriate definition for hours worked under California's wage order. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 842-844. 
 
Importantly, was the California Supreme Court emphasizing that it had previously "cautioned against confounding federal and state labor law," the California Supreme Court ruled that the language of Wage Order 4 did not evidence the state Industrial Welfare Commission's intent to incorporate, by reference, federal law and regulations. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 847.


Kilby vs. CVS Pharmacy (2016)

The Wage Orders requirement for suitable seating for workers is a question to be determined objectively based on the totality of the circumstances and employer has the burden of showing compliance is infeasible 

 
In the Kilby California Supreme Court case, workers were seeking to enforce the Wage Orders provisions that employers meet their duty to provide suitable seating. “Whether an employee is entitled to a seat under [Wage Order] section 14(A) depends on the totality of the circumstances. Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 19.
 
Once again, the California Supreme Court showed it’s heart is with protecting workers:
 
There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.
Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 17.
 
The Kilby Court rejected the employer’s contention that the employer’s business judgment is what should determine whether an employee is entitled to a seat or not: 
 
Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations,  job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.
Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 16- 18.

The Court adopted a “reasonably permits” standard for enforcing California Wage Orders for suitable seating: 
 
If the nature of the work reasonably permits seated work, section 14(A) unambiguously states employees “shall be provided with suitable seats.” There is no language suggesting that an employee must additionally show a particular type of seat would fulfill that requirement. An employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.
Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 24.
 

Augustus vs. ABM (2016) 

California employers have the same duty to provide rest breaks as meal breaks, employees are entitled to 10 minutes net duty free rest break, employees must relieved of all duties and the employer must relinquish all control over the employees 

 
The California Supreme Court in Augustus held that the same duties to provide meal breaks also apply to rest breaks. And employees are entitled to a net 10 minutes rest break at a suitable resting facility. If an employer fails to meet their duty an employee is entitled to an hour’s pay under California Labor Code Section 226.7.  Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 265.
 
I had the winning Supreme Court brief in the Augustus case. Meaning, the California Supreme Court ruled as I urged it to do in the Augustus case. I actually disagreed with one of the key concessions that the workers attorney made in the case, and the California Supreme Court agreed with my argument, protecting workers. 
 
But in Augustus, the California Supreme Court went even past where it had gone in Brinker. Frankly, I think the Supreme Court was as frustrated by the lack of folks correctly reading Brinker in regards to rest breaks as I was.  Because the Augustus decision hammered this point home for the third time: 
 
As we explained, a rest period means an interval of time free from labor, work, or any other employment related duties. And employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. (See Brinker, supra, 53 Cal.4th at pp. 1039-1040.)
 Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 270 (2016).
 
And again, do you notice the citation to the Brinker decision? Candidly, I think the Supreme Court was frustrated with the Appellate court’s decision in the Augustus case, the tortured Supreme Court brief filed by the employer, the similarly tortured Supreme Court amicus briefs filed by all the employer groups and even the Plaintiff’s Supreme Court brief filed in the case.
 
It was if the Supreme Court was saying, “Didn’t you folks read the Brinker decision?”  I know I felt that way when I read Defendant's Supreme Court brief in Augustus and all of the employer groups Augustus amicus curie briefs. Not to say, “I told you so,” but, my Augustus Supreme Court amicus brief got it spot on:
 
What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties, including the obligation that an employee remain on call. 
 Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 272 273 (2016).
 
“There must be a net 10 minutes of rest provided in each work period and the rest period must be, as the language implies, duty free.”
Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 267 (2016).
 

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Williams vs. Superior Court (2017)

Plaintiffs in PAGA and class action cases are entitled to discover the contact information of fellow employees and there is no requirement of proving a uniform policy in order to be successful in a PAGA case 

 
The California Supreme Court laid out the employers duty to provide discovery in wage claims, by deciding that employees have the the right to getting the names of their co-employees in a Private Attorney General Act (PAGA) case. And, when employees bring PAGA cases, they can bring the case for all of the company employees state-wide. Williams v. Superior Court (2017) 3 Cal.5th 531, 559. 
 
Williams is a strong worker protection case because it shows that the California Supreme Court realizes that wage cases are won with evidence. The court mandating employers provided the contact information of co-employees is a huge step in proving that your employer owes you - and your fellow co-employees - wages.
 
In addition, the Williams Court held that a plaintiff in a PAGA case does not have to show that he or she was subject to Labor Code violations before they will be allowed to conduct discovery in a PAGA case or a class action case:
 
 “...to show the merits of one's case has never been a threshold requirement for discovery in individual or class action cases; it is not a threshold requirement here.”
 Williams v. Superior Court (2017) 3 Cal.5th 531, 558.
 
The Williams court also held that a “recovery on behalf of the state and aggrieved employees may be had for each violation, whether pursuant to a uniform policy or not”:
 
A uniform policy may be a convenient or desirable way to show commonality of interest in a case where class certification is sought, but it is not a condition for discovery, or even success, in a PAGA action, where recovery on behalf of the state and aggrieved employees may be had for each violation, whether pursuant to a uniform policy or not. (See Lab. Code, § 2699(g)(1).) This is not to say uniform policies play no role in PAGA cases; proof of a uniform policy is one way a plaintiff might seek to render trial of the action manageable. But nothing in PAGA or our privacy precedents suggests courts can or should condition disclosure of contact information, which might lead to proof of a uniform or company wide policy, on prior proof of a uniform or company wide policy.
Williams v. Superior Court (2017) 3 Cal.5th 531, 559. 
 

Alvarado v. Dart Container Corp. (2018) 

Regular rate of pay is based upon all of your compensation and divisor in the calculation is all of the nonovertime hours worked in the pay period. And once again, California wage law does not follow federal wage law


In Alvarado, the California Supreme Court ruled  in employees favor in how to calculate regular rate of pay. Under California law, your overtime rate, double time rate, meal and rest premium rate and reporting time rate are all based upon your “regular rate of pay.” Your “regular rate of pay” is not simply your regular rate of pay or straight time rate. Instead, your regular rate of pay is calculated based upon all of the compensation your make during each respective pay period. 
 
The divisor for purposes of calculating the per-hour value of defendant's attendance bonus should be the number of nonovertime hours actually worked in the relevant pay period, not the number of nonovertime hours that exist in the pay period. Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 568.
 
It is important to focus our discussion on the precise language used by the California Supreme Court in explaining regular rate of pay:
 
“Regular rate of pay, which can change from pay period to pay period, includes adjustments to the straight time rate, reflecting, among other things, shift differentials and the per-hour value of any nonhourly compensation the employee has earned.” Alvarado v. Dart Container Corp. of California, 4 Cal. 5th 542, 554 (2018).
 
The California Supreme Court in Alvarado case held that California wage law does not follow federal wage law:
 
These requirements are more protective of workers than federal law, which does not require premium pay for workdays in excess of eight hours. Moreover, it is well settled that federal law does not preempt state law in this area, and therefore state law is controlling  to the extent it is more protective of workers than federal law. Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 554.


Dynamex (2018)

The California Supreme Court established the ABC test in order to determine whether workers are employees or independent contractor under California Wage Orders, making it much easier for workers to prove they are employees and entitled to employee protections under the Wage orders

In Dynamex, the employer classified its delivery drivers as independent contractors rather than employees. The drivers claimed that Dynamex's alleged misclassification of its drivers as independent contractors led to Dynamex's violation of the provisions of Industrial Welfare Commission wage order No. 9, the applicable state wage order governing the transportation industry.  Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 914.
 
The California Supreme Court held that in determining whether to classify workers as employees or as independent contractors for purposes of California's wage, the "suffer or permit to work" standard set forth in the wage orders require a hiring entity asserting independent contractor status to establish each of the three factors of the ABC test.
 
The ABC test under Dynamex:
 
Unless the hiring entity establishes all of the these:  
 
(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, 

(B) that the worker performs work that is outside the usual course of the hiring entity's business, and 

(C) that the worker is customarily engaged in an independently established trade, occupation, or business, 
 
...the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage  orders.
 
The hiring entity's failure to prove any one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of the wage orders. Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 958-964. 

 

Troester v. Starbucks Corp. (2018) 

Employees have to be paid for all time worked, even de minimis times (small periods of time) that they regularly work

In Troester, the employee had various duties that he had to perform after he clocked out related to closing the store such as setting the alarm, exiting the store and locking the front door. Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 836. These duties generally took the employee 4-10 minutes a shift. Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 843. The trial court, in relying on the de minimis doctrine from the FLSA (Federal wage law) held that the time was not compensable. Meaning, it is such a small amount of time that the federal law excused the non-payment of wages for these small amounts of time. Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 834. 
 
The California Supreme Court in Troester held for employees by rejecting the de minimis doctrine and required employees to pay for all time worked:
 
An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine. As the facts here demonstrate, a few  extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to  $102.67 at a wage of $ 8 per hour. That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.
Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 847. 
 
Perhaps, the foregoing paragraph is one of the most ample proof of the California Supreme Court understanding working folk and showing their hearts are in the right place. 
 
And importantly, the California Supreme Court once again in Troester found that the IWC had not adopted the FLSA (read: Federal law) in interpreting California wage law. Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 835.
 
Here, the DLSE's adoption of the federal de minimis rule appears to be based on the general proposition that federal case law construing the FLSA “may sometimes  provide guidance to state courts in interpreting the IWC Orders.” (DLSE Opn. Letter No. 1988.05.16, at p. 1.) But we will not presume the IWC intended to incorporate a less protective federal rule without evidence of such intent, and we see no sign of such intent here.
Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 841. (Emphasis added). 
 
Under California law based upon the Troester case, whether it is one minute or 10 minutes, under California law you are entitled to get paid for all time that you work.
 
It’s all about protecting workers. 
 

California’s wage laws must be interpreted liberally in order to protect workers 

Collectively -  Brinker, Ayala, Peabody, Iskanian, Mendiola, Kilby, Augustus, Williams, Alvarado, Dynamex, and Troester California Supreme Court case all stand for the proposition that the California Labor Code and California’s Wage Orders must be interpreted liberally in order to protect workers. 
 
Time and again, the California Supreme Court has shown that it’s heart is with California workers.  
 
These cases give you some very persuasive authority that the California Supreme Court will side with workers in your unpaid wages class action case and/or PAGA case.

 

Call us at 619-304-1000  - If you call after regular business hours, when you leave a message, be sure to repeat your name and telephone number twice, so we get it correctly. And be sure to indicate whether it's okay if we respond by text. 

Text us at 858-281-8008 - Be sure and put "new wage case" in your text. 

Or leave us a message on this webpage 

 

This article isn't legal advice


These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful. 

Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different. In other words, your mileage may vary.

William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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