Many California landscaping companies regularly violate California wage and hour laws. These companies don’t follow California wage laws for for landscapers, landscape workers, groundskeeping workers and lawn maintenance workers.
Usually these landscaping companies take advantage of low skilled labor and/or immigrant workers. The companies cheat these hard-working people by not paying them the wages they are owed and violating California’s strict wage laws. California's wage laws are contained in the California Labor Code and the California Wage Orders.
Landscape work is hard work. You’re out in the sun and the heat. The work is very tiring and backbreaking.
In this article, our California wage lawyers discuss California wage law for landscapers landscape workers, groundskeeping workers and lawn maintenance workers. We will refer to them collectively as “landscape workers.”
Landscape workers must get paid for all the hours that you work
Many California landscaping companies have workers work at the beginning of their shift or at the end of their shifts and don’t pay their employees for all of the time that they work.
This is illegal in California. It is a violation of California Wage law.
Landscaper workers fall under California Wage Order 5
California labor law that mandate compensation for “any” (Labor Code Section 510(a)) and “all” time worked (Wage order No. 5 Section 2(K)). The breadth of the language reflects California's vital interest in ensuring that employers fully compensate their employees for the work they perform. Troester v. Starbucks Corp., 5 Cal. 5th 829, 854 (2018).
Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?
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 straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.
You must be paid the minimum wage or the agreed upon wage
Under California law, you must be paid the California minimum wage or the agreed upon wage.
California law requires employers to pay you for all the time that you work. Employers are required to pay you at least the minimum wage for all hours you work. And employers must pay you at the contract rate. Meaning, what they agreed to pay you. These are called “contract wages” or “agreed upon wages.” California Labor Code Section 1194.
Under California law, if you are not paid at least minimum wage, you are allowed to recover attorney fees, interest and costs of bring the lawsuit to recover your unpaid minimum wages. California Labor Code Section 1194.
What are liquidated damages under California law?
Under California law, employers must pay employees at least the minimum wage and legal overtime compensation for overtime that is worked. California Labor Code Section 1194. If you aren’t paid at least minimum wage then you may be entitled to liquidated damages. Which is double the minimum wage rate. California Labor Code Section 1194.2 (a).
Stated differently, under California law, if you aren't paid at least minimum wage for all the time that you work - then you may be able to recover twice the minimum wage rate in what the law calls liquidated damages.
The “liquidated damages” allowed in section 1194.2 are in effect a penalty equal to the amount of unpaid minimum wages. Martinez v. Combs, 49 Cal. 4th 35, 48 (2010).
You cannot recover liquidated damages under section 1194.2 unless you have a valid claim under California Labor Code Section 1194. California Labor Code Section 1194.2 (a).
Your employer must record all of the time that you work
We have seen landscaping companies that don’t record the time that employees work. Meaning, the employees don’t punch a time clock or write down each day when they start work or record their work time with a phone or tablet.
This is illegal under California law.
California Wage Order 5 states:
(A) Every employer shall keep accurate information with respect to each employee including the following:
(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.
California Wage Order 5(A)(3)
The landscape company must record meal breaks
Landscape companies must record when you take a meal break/ lunch break each day.
Since employers have a duty to record their employees' meal periods, “if an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.” Brinker vs. Superior Court, 53 Cal.4th 1004, 1053 (2012) (conc. opn. of Werdegar, J.); see Cal. Code Regs., tit. 8, § 11050, subd. 7(A)(3); ABM Industries Overtime Cases, 19 Cal. App. 5th 277, 311, 227 (2017).
Under such circumstances, a court may award damages, even if they are only approximate and based on statistical sampling. Bell v. Farmers Ins. Exchange, 115 Cal.App. 715, 746–751 (2008); ABM Industries Overtime Cases, 19 Cal. App. 5th 277, 311, 227 (2017).
In other words, when the company doesn’t record your lunch breaks/ meal breaks, the law assumes you didn’t get a meal break/ lunch break.
When this happens, you’re entitled to an hour’s pay every day.
What duties does the landscape company have to provide meal breaks/ lunch 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 vs. Superior Court (2012) 53 Cal.4th 1004, 1040.
This is all based upon the ground-breaking California Supreme Court case - Brinker vs. Superior Court. I know the Brinker case very well, because I represented the workers in the Brinker case. I use the Brinker case all of the time in order to win workers wages in unpaid wages class action cases.
Getting your unpaid wages settlement check... Yes!!
What's in it for me? ... an hour's pay for every missed meal break and you must be paid for the 1/2 hour's pay that was deducted.. it can be thousands of dollars in unpaid wages
You might be thinking to yourself, "Why is this important? And, how does this affect me?"
Putting aside the human side of it - that is taking a break from work and eating and relaxing, California law says that you are entitled to an hour's pay every time that your employer doesn't provide you with a legally compliant meal break.
A lot flows from this - meaning your unpaid wages. That is, failure to be paid for all time worked, pay stub violations, waiting time penalties and the like.
Oftentimes you are looking at being owed thousands and thousands of dollars in unpaid wages. Sometimes even tens of thousands of dollars.
Rest breaks - you are entitled to an hour’s pay for every missed rest break
Many landscaping companies either don’t allow workers to take rest breaks or they violate California’s rest break laws by not providing legal rest breaks.
California has powerful rest break laws. Employers owe you the same duties for rest breaks as they do meal breaks. Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 265, (2016).
One of the employers duties as laid out by the California Supreme Court in the Brinker and Augustus cases is employers must not do anything (including a policy and/or practice) of discouraging or impeding employees from taking rest breaks Augustus v. ABM Security Services, Inc., 53 Cal. 4th 1004, 1033 (2012); Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 265, (2016).
For example, if the company won't let you leave the work site during rest breaks, this means you didn't get a legal rest break under California law. You are entitled to an hour’s pay for every missed rest break.
This is all based upon the Brinker and Augustus California Supreme Court cases. I represented the workers in the Brinker Supreme Court case and I know the Augustus case real well because I wrote the winning brief in the Augustus Supreme Court case.
California has powerful recovery period and cool down rest period laws - you are entitled to an hour’s pay for every recovery period you didn’t get
California Regulation 3395 Heat Illness Prevention regulations lays out detailed requirements for employers to provide rest periods and recovery periods if you work in “outdoor places of employment.” Which means, either “outside” and/or places of employment that aren’t “indoors.”
You are entitled to an hour’s pay if your employer fails to provide you a recovery period in accordance with state law. California Labor Code Section 226.7.
5 Minute Cool Down Period
Under California law, if you work outside you are entitled to a cool down rest in the shade whenever you feel the need to protect yourself from overheating. You are entitled to no less than 5 minutes in addition to the time needed to access the shade. Tit. 8, Cal. Code Regs. § 3395(d)(3).
If your employer hasn’t established, implemented and made available a Heat Illness Prevention Plan then how can you have waived your right to take preventative cool-down rest periods?
Section 3395(i) states, in part:
(i) Heat Illness Prevention Plan. The employer shall establish, implement, and maintain, an effective heat illness prevention plan. The plan shall be in writing in both English and the language understood by the majority of the employees and shall be made available at the worksite to employees and to representatives of the Division upon request.
Again, the word “shall” is used to create an affirmative obligation or duty on the part of your employer.
The word “shall” creates an affirmative obligation for the Heat Illness Prevention Plan to be in the writing of the language understood by a majority of the employees.
You must be provided be provided access to a toilet
California Wage Order No. 5 requires the company to provide you with access to a toilet during working hours. Based upon what we have seen, very few landscaping companies provide access to toilets for their workers. California Wage Order No. 5 Sections 13(A), 13(B), 15(C).
When the company doesn't provide you with access to a toilet, then this is a PAGA violation under California law.
The company must provide you with drinking water
Under California law, your employer must provide you with drinking water. California Regulation 3395(c).
If the company doesn't provide you with drinking water, it is a PAGA violation and you can get PAGA penalties.
The company must provide you with access to shade
The company must provide you with access to shade "at all times" when the temperature is over 80 degrees outside. California Regulation 3395(d)(1).
If the company fails to provide you with this access to shade you are owed an hour's pay for every day that you worked under these conditions. California Labor Code Section 226.7.
In addition, this is also a PAGA violation and you can get PAGA penalties.
PAGA penalties for Labor Code violations and Wage Order violations
Every Labor Code violation is also a separate Private Attorney Generals Act (PAGA) violation. And every Wage Order violation is a separate PAGA violations. You are entitled to PAGA penalties for PAGA violations.
Each PAGA is $100 per employee for the first violation and $200 per employee for the second violation, per pay period.
75% of these PAGA penalties go the State of California and 25% go to the aggrieved employees. The PAGA violations alone can add up to thousands and thousands of dollars for each employee.
Paycheck stub violations - you can get up to $4,000
Under most circumstances, if the company violates the law about not paying you wages correctly, you are also going to be entitled to pay stub violations.
This is a $4,000 ticket item for most workers. Meaning, you can get up to $4,000 just for the pay stub violations alone.
Waiting time penalties - this can total thousands and thousands of dollars (all for not getting paid as little as $5 in wages)
If you aren’t paid all the wages you’re owed at the time of termination, you are entitled to 30 days wages.
Just so you understand this better. If the company owes you as little as $5.00 in wages and they don’t pay the $5.00 timely (meaning at the time you are fired or time you quit if you give notice or within 72 hours if you’re fired or quit without giving notice), then you entitled to 30 days waiting time penalties. This can easily total over $5,000 or more form many workers.
That’s right - you are entitled to thousands of dollars even if the company owes you as little as $5.00 in wages.
This shows how powerful California’s wage laws are.
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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, or 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.