• Since our inception, we have stuck to one principle: the only way to do business is to offer unparalleled customer services. We pride ourselves on providing cost effective excellent legal services.

    WE FOCUS ON YOU

    Most of us have the ability to hear, but very few of us actually listen. At Rupal Law, we take listening to our clients seriously. What good is legal service if you the client don't understand the lawyer’s approach?
    When we meet with you, whether it’s the first meeting or we have been meeting with you for years, you will never walk away feeling that you were not heard. We value your hard work in creating a comfortable living, and we are committed to protecting it.

    In our meetings, we do not explain things to you just so we can hear ourselves talk. We do not use legal “mumbo jumbo” to impress you. Our goal is to use this time in an efficient manner to solve your legal problems. We focus on presenting a plan of action and means to execute it to reach your goals in an optimal fashion.

    WE COMMUNICATION EFFECTIVELY

    Communication is an indispensable skill and need for good communication always exist. Having good communication skills is all about being able to convey information clearly, simply, and timely. At Rupal Law, we believe that you deserve open and effective communication.

    The communication process starts immediately as we learn what you want and expect from us. We learn about your unique needs and your specific needs. By taking the time up front to communicate we build solid foundation to avoid miscommunication. We don’t stop there. The need for communication will continue through every phase of client-attorney relationship as we work together to meet your legal needs. Because you are busy and we value your time, we have learned to make our communication count. We make extra effort to be clear, concise, and timely so there is no need to go back and forth several times just to understand the issue at hand.

    WE REPRESENT COMPETENTLY

    One of the most important decisions an attorney makes is the decision to represent a client because attorneys are generally free to reject a client’s offer of employment. However, once an attorney agrees to represent a client, the lawyer must provide competent representation. Competence requires the legal knowledge, skill, thoroughness, and preparation reasonable necessary for the representation.

    We do not focus on acquiring bare knowledge of the law because that alone is not enough to represent you competently. We know that the fact that an attorney possesses skills of technical competency to know the law which applies to a client’s problem is of little value if that knowledge cannot be applied to bring about a tolerable, if not satisfactory, resolution for you. We strive to produce work products that reasonably and economically meet your needs, your expectations, and serve your needs.

Independent Contractor vs. Employee

Do you work as an independent contractor?  Do you know what constitutes work as an independent contractor?  Or are you really working as an “employee”?  There are differences between the two, but sorting it out can get a little complicated.  However, it would behoove you to know where you stand in case you are ever engaged in a legal dispute regarding your job.  Here is some relevant information provided by The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department):

28 INDEPENDENT CONTRACTOR vs. EMPLOYEE.

28.1 Labor Code § 2750, Contract Of Employment: “The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person.”

28.2 Burden Of Proof. The party seeking to avoid liability has the burden of proving that persons whose services he has retained are independent contractors rather than employees. In other words, there is a presumption of employment. (Labor Code § 3357; S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341 at pp. 349, 354 .)

28.3 Multi-Factor Borello Test. In determining whether an individual providing service to another is an independent contractor or an employee, there is no single determinative factor. Rather, it is necessary to closely examine the facts of each service relationship and to then apply the “multi-factor” or “economic realities” test adopted by the California Supreme Court in Borello, supra, 48 Cal.3d 341.

28.3.1 The Test Prior To Borello. Prior to Borello, the leading case on this subject was Tieberg v. Unemployment Insurance Appeals Bd. (1970) 2 Cal.3d 94 3, which held that “the principle test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” Under this test, “if the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists.” Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43.

28.3.2 Control As A Factor. Borello brought about a sharp departure from this overriding focus on control over work details. The growers who were found to be employers by the Borello court did not have the contractual authority to exercise supervision over work details, yet the court ruled that they retained “all necessary control” over their operations. The simplicity of the work, or the existence of a piece-rate based payment system, may make it unnecessary for an employer to assert direct control over work details and the employer may retain “all necessary control” by indirect means.

28.3.2.1 “The ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements.” (Borello, 48 Cal.3d at p. 350) While the right to control the work remains a significant factor, the Borello court identified the following additional factors that must be considered:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;

2. Whether or not the work is a part of the regular business of the principal;

3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;

4. The alleged employee’s investment in the equipment or materials required by his task;

5. The skill required in the particular occupation;

6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

7. The alleged employee’s opportunity for profit or loss depending on his managerial skill;

8. The length of time for which the services are to be performed;

9. The degree of permanence of the working relationship;

10. The method of payment, whether by time or by the job;

11. Whether or not the parties believe they are creating an employer-employee relationship.

28.3.2.2 Factors Cannot Be Applied Mechanically. These “individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” These factors must be applied “with deference to the protective legislation,” in a manner that will effectuate the provisions of the Labor Code, in view of the history and fundamental purposes of the legislation. (Borello, supra, 48 Cal.3d at pp. 351, 353) For example, in the application of minimum wage legislation, “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” Real v. Driscoll Strawberry Associates, 603 F.2d 748, 754 (9th Cir.1 979).

28.3.3 Application Of Economic Realities Test: In Yellow Cab Cooperative v. Workers Compensation Appeals Bd. (1991) 226 Cal.App.3d 1288 , the court held that taxi drivers who pay a daily lease fee to a taxi company for the right to drive a taxi are employees rather than independent contractors, despite the company’s contention that the drivers did not have to take radio calls, could drive wherever they wanted, could use the taxi to run personal errands or carry non-paying passengers, and could choose to work whenever they wanted. The court, while noting the absence of control over work details, reasoned that “to the extent [a driver’s] freedom might appear to exceed that of a typical employee, it was largely illusory. If he wanted to earn a livelihood, he had to work productively and that meant carrying paying passengers.” (Yellow Cab Cooperative, 226 Cal.App.3d a t p. 1299 ) The absence of control over details is of no consequence “where the principal retains pervasive control over the operation as a whole, the worker’s duties are an integral part of the operation, the nature of the work makes detailed control unnecessary, and adherence to statutory purpose favors a finding of [employment].” (Id., 226 Cal.App. at p. 1295)

28.3.3.1 Investment As A Criteria. A disproportionate level of investment by the employer is a factor that points towards an employer/employee relationship. For example, in a typical taxi lease arrangement, the taxi company owns the vehicle and the medallion, and pays for liability insurance, a radio dispatch system, towing, taxi repairs and maintenance. The driver pays a daily or weekly lease fee and may be responsible for filling the taxi with gasoline before returning it.

28.3.3.2 Business Of Employer As A Factor. Ownership of the vehicle used to perform the work may be a much less important factor in industries other than transportation. Even under the traditional, pre-Borello common law standard, a person making pizza deliveries was held to be an employee of the pizzeria, notwithstanding the fact that the delivery person was required to provide his own car and pay for gasoline and insurance. Toyota Motor Sales v. Superior Court, 220 Cal.App.3d 86 4, 876. “The modern tendency is to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service.” (Borello, supra, 48 Cal.3d at p. 357)

28.3.3.3 Labels Not Dispositive. The existence of a written agreement purporting to establish an independent contractor relationship is not determinative. “The label placed by the parties on their relationship is not dispositive, and subterfuge will not be countenanced.” (48 Cal.3d at p. 349) The Labor Commissioner, and the courts, will look behind any such agreement in order to examine the facts that characterize the parties’ actual relationship.

28.3.3.4 Length Of Service. The fact that a person may be hired to work for only a short period of time is also, obviously, not always a determinative factor. The so-called “share farmers”, found to be employees in Borello, were engaged to provide services during the course of a sixty-day harvest season. Despite the seemingly temporary nature of this arrangement, the court observed that their seasonal positions are “permanently integrated into the [grower’s] business.”

28.3.3.5 Effect Of Tax Status. The fact that a person who provides services is paid as an independent contractor, that is, without payroll deductions and with income reported by an IRS form 1099 rather than a W2, is of no significance whatsoever in determining employment status. “An employer cannot change the status of an employee to one of an independent contractor by illegally requiring him to assume a burden which the law imposes directly on the employer.” Toyota Motor Sales v. Superior Court (1990) 220 Cal.App.3d 864, 877.

Well, that is quite a bit of information.  Indeed, this section continues on in the Manual and provides further information.  However, I have provided most of the “jist” of the subject here.

Obviously, this is a complex subject.  If you have any questions regarding Independent Contractor vs. Employee, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Tribal Immunity

If you are a native American Indian, or if you work for a tribal-owned business or on tribal land, you probably should be aware of some information regarding tribal businesses and immunity.  According to The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

43 ENFORCEMENT OF WAGES, HOURS AND WORKING CONDITIONS REQUIRED BY THE INDUSTRIAL WELFARE COMMISSION ORDERS.

43.6.3 Workers Employed by Indian Tribes or Businesses Owned by Tribes. Indian tribes, and businesses owned by tribes, enjoy sovereign immunity which deprives DLSE and non-tribal courts of jurisdiction to enforce or adjudicate claimed violations of wage and hour laws, including claims for unpaid wages, against Indian tribes, business entities owned by tribes, and officers or agents of a tribe acting in their official capacity and within the scope of their authority for work performed on a federal enclave or where state civil law jurisdiction has been reserved or retroceeded.

43.6.3.1 Geographic Location of the Employment Not Determinative. The doctrine of tribal immunity extends beyond the geographic borders of a tribe’s reservation and covers commercial activities with persons who are not members of a tribe. Tribal immunityapplies unless specifically abrogated by Congress or waived by the tribe. Thus, even though substantive state law may apply to off-reservation tribal conduct, tribal immunity operates to deprive the state of the means to enforce such law, at least as to actions or claims for monetary damages. Kiowa Tribe v. Manufacturing Technologies, Inc (1998) 523 U.S. 751, 118 S.Ct. 1700.

43.6.3.2 Limitations on Tribal Immunity. Indian sovereign immunity does not preclude actions for declaratory or injunctive relief against tribal officials. TTEA v. Ysleta Del Sur Pueblo (5th Cir. 1999) 181 F.3d 676. A tribe waives immunity from suit by agreeing to an arbitration clause which provides for court enforcement of an arbitration award. Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 115 Cal.Rptr.2d 455; C&L Enterprises v. Potawatomi Indian Tribe (2001) 532 U.S. 411, 121 S.Ct. 1589. Under the rationale set forth in these cases, DLSE could enforce wage and hour requirements prospectively, through actions for injunctive and declaratory relief. DLSE could process the wage claim of a person employed by a tribe or tribal entity if that person’s employment is governed by an arbitration agreement. Of course, the tribe or tribal entity might seek to enforce the arbitration agreement, in which case DLSE’s jurisdiction over the claim would case if a court ordered arbitration.

43.6.3.3 Tribal Immunity Extends to Certain Individuals. A tribal entity, including tribal owned businesses, are treated as the tribe for immunity purposes. This immunity extends to individual tribal officials and agents acting in their representative capacity and within the scope of their authority. Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th, 84 Cal.Rptr.2d 65; Redding Rancheria v. Superior Court (2001) 8 8 Cal.A pp.4th 384; 105 Cal.Rptr.2d 773.

43.6.3.4 Tribal Immunity Does Not Extend Generally to Tribal Members. Congress, at 28 U.S.C. §1360, expressly conferred California with civil jurisdiction over Indian territory within the State’s boundaries. But this jurisdiction only applies to individual Indians; not to tribes or tribal entities. Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 88 Cal.Rptr.2d 828; Bryan v. Itasca County (1976) 426 U.S. 373, 96 S.Ct. 2102. Because tribal sovereign immunity does not protect individual tribal members, DLSE may enforce and adjudicate claims for unpaid wages against businesses owned by persons who are tribal members, as long as the business is not owned by the tribe or an entity created by the tribe.

43.6.3.5 No Jurisdiction to Enforce Civil Penalty Provisions in Labor Code Against Tribes or Tribal Business Entities. California can enforce “criminal/prohibitory” laws, but not “civil/regulatory” laws against tribes and tribal entities. Middletown Rancheria v. Workers Comp. Appeals Bd. (1998) 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105, held that despite a criminal sanction, workers compensation laws are “civil/regulatory”, so the State lacks jurisdiction over the tribe for the purpose of enforcing California workers’ compensation insurance laws. The same analysis would apply to other citable civil offenses. As with wage and hour claims, DLSE has jurisdiction to enforce these laws as to businesses owned not by the tribe but by tribal members.

43.6.3.6 Specific Laws Governing Indian Casinos. The governing federal statute, the Indian Gaming Regulatory Act of 1988 (25 U.S.C. §2701, et seq.) sets out a comprehensive scheme for regulating gaming on Indian lands, but also provides for the application of state law to a significant degree. The Act requires compacts between tribes and states to govern the scope and conduct of Indian casino gaming, and these compacts may further allocate jurisdiction between the tribe and the state. The Indian Gaming Compact adopted by California, under which Indian casino gambling is now regulated, is completely silent as to wage and hour issues. The Compact expressly allows tribes to maintain their own workers’ compensation insurance systems, while requiring independent contractors doing business with a tribe to comply with state workers’ insurance compensation laws.

43.6.3.7 Applicability of Federal Wage and Hour Law to Tribes and Tribal Entities. The issue of the applicability of the Fair Labor Standards Act to tribes and tribal entities remains unsettled. In Reich v. Great Lakes Indian Fish & Wildlife Comm. (7th Cir. 1993) 4 F.3d 490, the court held that law enforcement officers employed by an Indian agency were exempt from the overtime requirements of FLSA, finding that they should be treated in the same manner as other law enforcement officers who are subject to an exemption under FLSA. The court did not reach any conclusion on the broader issue of FLSA’s applicability to Indian tribes and tribal entities.

43.6.3.8 Contractual Right to Wage Payment May Be Enforceable Even Though Work Performed On A “Federal Enclave.” Finally, we must note that another source of coverage could be the contractual agreement between the federal entity and the contractor. If that agreement requires the contractor to comply with California wage and hour law, the employees would be entitled to enforce their rights under that contract as third party beneficiaries, or DLSE could bring an action on their behalf.

We see that there are some intricacies here.  If you are an entity wishing to file a wage claim against someone connected with a tribe, it would be best to carefully review the above information.

You may have questions regarding a couple of the terms used above.  According to Wikipedia.org:

Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued.

Tribal-State Compacts are declared necessary for any Class III gaming on reservations under the Indian Gaming Regulatory Act of 1988 (IGRA). They were designed to allow tribal and state governments to come to a “business” agreement.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Public Employees and Minimum Wage

Are you a “public employee”?  (In other words, do you work for the State, city, county, or a special district?)  If you are a long-time employee (you began working there in 2000 or before), you may not be aware of some changes to labor laws that were made January 1, 2001.  Here is a snapshot of changes regarding minimum wage, overtime, and other items, according to The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

43 ENFORCEMENT OF WAGES, HOURS AND WORKING CONDITIONS REQUIRED BY THE INDUSTRIAL WELFARE COMMISSION ORDERS.

43.6.4 Public Employees’ Partial Exemption From IWC Orders. Prior to January 1, 2001, public employees were expressly excluded from the Minimum Wage Order, and from Orders 1-13. Thus, those workers were not covered by minimum wage or overtime requirements.  In the case of Andrews v. Central California Irrigation District (E.D. Cal. 1999), the federal district court, in an unpublished decision, ruled that because there is no provision excluding public employees from Order 14 coverage, an irrigation district’s employees are covered by that wage order and its overtime requirements. The IWC, though made aware of this decision, declined to amend Order 14; consequently, public employees are treated the same as private employees under that Order.

43.6.4.1 Public Employees Are Now Covered By State Minimum Wage Requirements. With the enactment of MW-2001, on January 1, 2001, public employees (“employees directly employed by the State or any political subdivision thereof, including any city, county, or special district”) are now expressly covered by minimum wage requirements. Also, Orders 1-13 were amended effective January 1, 2001 to specify that Sections 1 (Applicability), 2 (Definitions), 4 (Minimum Wage), 10 (Meal and Lodging credits) and 20 (Penalties for Underpayment) of these orders are applicable to public employees, while all other sections of these orders (e.g., overtime, meal and rest period requirements) are not. Order 16 contains similar provisions. Public employees are, therefore, entitled to payment of not less than the minimum wage for all “hours works” within the meaning of the applicable wage order. (O.L. 2002.01.29).

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Reporting Time Pay

Perhaps this has happened to you:  You report to work, but your employer says he/she has no work for you yet, “but come back in an hour or two.”  Or have you ever been compelled by your employer to attend a mandatory office meeting, but it’s scheduled during your day off?  Or the power goes out in your work building, and your employer tells you to “hang around, but don’t go far.”  What are your rights concerning getting the correct amount of pay, according to labor law?  We have some answers for you below, provided by The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

45 WORKING CONDITIONS UNDER THE IWC ORDERS

45.1 Reporting Time Pay. Section 5 of each of the Orders provides:

(A) 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 said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.

(B) If an employee is required to report for work a second time on any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.

(C) The foregoing reporting time pay provisions are not applicable when:

(1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or

(2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or

(3) The interruption of work is caused by an Act of God or other cause not within the employer’s control.

(D) This section shall not apply to an employee on paid standby who is called to perform assigned work at a time other than the employee’s scheduled reporting time.

45.1.1 Reporting Time Pay In Connection With Call Back. If the employee is on a paid standby and is called to work, the reporting time pay provisions do not apply. In order to qualify as paid standby, the hourly wage for the standby time which has been agreed to or, absent a specific agreement, at the employee’s regular rate of pay must be paid.

45.1.1.1 Reporting time pay constitutes wages. (Murphy v. Kenneth Cole (2007) 2007 WL 1111223). Thus, failure to pay all reporting time pay due at the time of employment termination may be the basis for waiting time penalties pursuant to Labor Code § 203.

45.1.2 Employee Reports To Work And Told To Return Later. The DLSE has been asked what the reporting time pay requirements are when an employee is told to report at a specific time and is then told that there is no work available at that time but that he or she is to report again, say, two hours later. The language of the regulation clearly requires that the applicable premium be paid if, at the first reporting of the day, the employee is not put to work or is provided less than one-half the scheduled or usual number of hours; this would be the result despite the fact that the employee might, eventually, work more than the scheduled hours in the day in a subsequent reporting. At the second reporting of the day the same plain language of the regulation would require that in the event the employee is furnished with less than two hours of work, the employee is, nevertheless, entitled to recover two hours at the employee’s regular rate of pay.

45.1.2.1 The reporting time premium requirement is designed to discourage employers from having employees report unless there is work available at the time of the reporting and is further designed to reimburse employees for expenses incurred in such situations.

45.1.2.2 If the employee was not simply told to report later, but the employee’s activities were restricted by the employer pending the second reporting time, the time spent would be compensable as waiting time. (See also Section 45.1.6.1, below)

45.1.3 “Employee’s Usual Or Scheduled Day’s Work.” If an employee has no regularly scheduled shift, then the usual shift worked by the employee (but in no event less than two or more than four hours) must be paid. However, if an employee has a regularly contracted “scheduled” relief shift of less than two (2) hours the reporting time penalty is not applicable. However, in such a situation the employee must be paid for the regularly scheduled contracted amount.

45.1.3.1 Example: Assume a worker is scheduled to work four days of two hours each and one day of one hour. The regularly contracted relief shifts are not subject to the reporting time penalty. Note the emphasis on regularly contracted part-time relief (see AG Opinion in footnote). This exception would not apply unless the shift is regularly scheduled and is less than two (2) hours.

45.1.4 Required “Training” Or “Staff” Meeting Attendance. DLSE has been asked on a number of occasions how the Reporting Time provisions of the Orders affect a situation where the employer requires employees to attend a short training meeting, staff meeting or similar gathering under a variety of circumstances. Most common are:

1. Required meeting is scheduled for a day when the worker is not usually scheduled to work. The employer tells all of the workers that attendance at the meeting is mandatory and a one-or two-hour shift is “scheduled” for this meeting. For those workers not “regularly scheduled” to work, the employee must be paid at least one-half of that employee’s usual or scheduled day’s work.

2. Required meeting is scheduled on the day a worker is scheduled to work, but after the worker’s scheduled shift ends.

a. If there is an unpaid hiatus between the end of the shift and the meeting, the employee must be paid, pursuant to Section 5(B) (see above) at least two hours for reporting a second time in one day.

b. If the meeting is scheduled to immediately follow the scheduled shift, there is no requirement for the payment of reporting time no matter how long the meeting continues.

45.1.5 Interruption Of Work. You will note that reporting time pay is not required when “the interruption of work [requiring the second reporting time] is caused by an Act of God or other cause not within the employer’s control.” DLSE has recently concluded that rain or other inclement weather that makes it impossible or unsafe to work falls into the category of “an Act of God or other cause not within the employer’s control.” This means that if workers are sent home (either immediately upon reporting to work or during the workday) because of rain or other inclement weather, there is no obligation to pay reporting time pay.

45.1.5.1 However, employees must be paid for all time they are restricted to the employer’s premises, or worksite, while “waiting out” a delay caused by rain or other inclement weather, if they are not free to leave the premises or worksite during that time, even if the employees are relieved of all other duty during the period of time they are waiting for weather conditions to improve. The reason for this is that under the IWC orders, employees must be paid for all “hours worked,” and the term “hours worked” includes both “all time the employee is suffered or permitted to work, whether or not required to do so,” and all “time during which an employee is subject to the control of an employer.” Restricting employees to the employer’s premises, or worksite, means that the employee is subject to the employer’s control so as to constitute “hours worked.” See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, and Bono Enterprises v. Labor Commissioner (1995) 32 C al.App.4th 9 68. Under such circumstances, the employees must be paid their regular rate of compensation (which cannot be less than the minimum wage), or any overtime rate, if applicable. (O .L. 1998.12.28)

45.1.6 Restrictions Placed On Employee In Situations Involving Weather Delays. Even if the employee is given some limited freedom to leave the employer’s premises or worksite while “waiting out” a delay caused by rain or inclement weather, there will still be an obligation to pay the employee for such time if the employee is so restricted geographically and/or temporally that the worker is deprived of effective use of his own time.

45.1.6.1 Example: If a worker is told that he can go across the street to a café during a rain delay, but that he must report back to work within five minutes of being notified that work is starting, the entire time that the worker is waiting in the café will constitute “controlled stand-by time”, which is treated as “hours worked”. (See generally, Berry v. County of Sonoma (9th Cir.1994) 30 F.3d 1174).

And so the answers to a lot of these questions depends on the amount of time spent working or not working.  It would behoove you to keep careful track of your time and how it is spent should you ever find yourself in one of these situations.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Meal Periods

Have you ever had a day at work when your employer has told you, “You know, we’re too busy/too behind/too swamped here today, we’re going to have to skip lunch”?  Worse yet, does it happen pretty frequently?  Or does your boss interrupt or cut your lunch short, saying “the client is here, I need you right now”?  Yes, it’s annoying, but it’s also illegal unless certain conditions have been met.  Following is some relevant information from The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

45.2 Meal Periods. Labor Code § 512(a) provides: An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. Section 11 of Wage Order 4-2001 provides:

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work, the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

(B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.

(C) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated.

(D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day’s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect.

45.2.1 Employers Must Provide Meal. In Brinker Restaurant Corporation v. Superior Court of San Diego (Hohnbaum),1 the California Court of Appeal interpreted Labor Code § 512(a) and Section 11 of Wage Order 5-2001 to mean that employers must provide meal periods by making them available, but need not ensure that they are taken. Employers, however, cannot impede, discourage or dissuade employees from taking meal periods. The court found persuasive the reasoning in the federal district court decisions in White v. Starbucks (ND Cal. July 2, 2007) 497 F.Supp.2d 1080 and Brown v. Federal Express Corp. (CD Cal. Feb. 26, 2008) 2008 WL 906517, and concluded that employers need not ensure meal periods are actually taken, but need only make them available. According to the court, Labor Code § 512(a) requires that an employer must make a first 30-minute meal period available to an hourly employee who is permitted to work more than five hours per day, unless (1) the employee is permitted to work a “total work period per day” that is six hours or less, and (2) both the employee and the employer agree by “mutual consent” to waive the meal period. The court also found section 512 to plainly provide that an employer must make a second 30-minute meal period available to an hourly employee who has a “work period of more than 10 hours per day” unless (1) the “total hours” the employee is permitted to work per day is 12 hours or less, (2) both the employee and the employer agree by “mutual consent” to waive the second meal period, and (3) the first meal period “was not waived.” Employers are not required to provide a meal period for every five consecutive hours worked. The court held that the employer’s practice of providing employees with an “early lunch” within the first few hours of an employee’s arrival at work did not violate California law, even though that would mean that the employee might then work in excess of five hours without an additional meal period.

45.2.2 Note: Labor Code § 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Labor Code § 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal (continued on page 45 – 5) period requirement. Thus, no premium pay may be imposed on an employer who fails to provide a meal period to an exempt employee.

45.2.3.1 Limited Waiver Of Meal Period Requirement Allowed In Two Situations:

1. If a work period of not more than six hours will complete the day’s work, the meal period may be waived entirely by mutual consent of the employer and employee.

a. Note, there is no requirement that the waiver be in writing in this situation.

b. There is no requirement in this situation that the employee be able to eat while on duty as is the case with an “on-duty” meal period described below.

c. An employer may not employ an employee for a work period of more than 10 hours in a workday without providing a second meal period. This second meal period may be waived if the total hours of work are no more than 12 hours and the first meal period has not been waived.

2. An on-duty meal period may be provided if the employee agrees in writing, and such on duty meal is allowed “only when the nature of the work prevents an employee from being relieved of all duty.”

a. The test of whether the nature of the work prevents an employee from being “relieved of all duty” is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties.

b. The written agreement for an on-duty meal period must contain a provision that the employee may, in writing, revoke the agreement at any time.

c. DLSE does not have the jurisdiction to exempt an employer from the meal period provisions in the Orders or those of Labor Code §§226.7, 512.

45.2.3.2 Collective Bargaining Situations. Labor Code § 514 was amended effective January 1, 2002, to repeal the statutory exemption from the meal period requirement in the case of workers covered by a collective bargaining agreement. The Legislature adopted a statement that this amendment was declarative of existing law and shall not be deemed to alter, modify or otherwise affect any provision of any IWC Order. IWC Orders 1-15 and 17 do not provide, and never have provided, a CBA opt-out for meal period requirements. While Order 16 does contain such an opt-out provision, in 2006 the Court of Appeal declared this opt-out provision to be unenforceable due to its having been adopted in violation of the express provisions of Labor Code § 516 which does not allow the IWC to adopt meal period requirements that are inconsistent with Labor Code § 512. Bearden v. Borax, 138 CA 4th 429 (2006).

1 Labor Code Section 512 which requires the meal periods, allows the IWC to adopt a working condition permitting a meal period to commence after six hours of work – however, the IWC has not done so. Consequently, the employer and employee must agree to the waiver under the conditions set out in the Orders.

2 When an employee works more than six (6) hours, there is only one set of circumstances wherein a first meal period may be waived and that is if the employee accepts, in writing, an on-duty meal period under the conditions set out in the Orders concerning the nature of the work, precluding an employee from being relieved of all duty. This provision of the IWC Orders and Labor Code §512(a) precludes two on-duty meal periods in any one day.

45.2.4.1 Order 1-2002 Amendment Allowing Parties To Collective Bargaining Agreements To Agree To A Meal Period After Six Hours Of Work. Effective July 1, 2002, IWC Order 1-2002 allows a limited exception to the rule that no employer shall employ a worker for a period of more than five hours without a meal period to workers employed under the terms of a collective bargaining agreement. The IWC added a second sentence to Paragraph A that provides: “In case of employees covered by a valid collective bargaining agreement, the parties to the collective bargaining agreement may agree to a meal period that commences after no more than six (6) hours of work.” Note that this CBA exception only applies to Order 1.

45.2.4.2 There is, of course, language in the Orders which allows an employee to waive the meal period by accepting an on-duty meal period if all of the required circumstances exist. California law has always allowed a union, as the collective bargaining representative, to act on behalf of its members where such waiver is allowed. (Porter v. Quillin (1981) 123 Cal.App.3d 869). However, as is the case where there is no CBA, it must be established by objective criteria that the conditions for the on-duty meal period are met before the waiver is allowed. The parties may not agree to the on-duty meal period because it is desired or helpful.

45.2.5 “On-Duty Meal Period”. Even if all of the circumstances exist to allow an on-duty meal period, the employee must be provided with the opportunity to eat his or her meal while performing the duties required.

45.2.6 Meal Time Training Or Client Meetings. If an employee is required by the employer to attend a luncheon, dinner or other work related meal, or training accompanied by a meal, the employer must pay for the cost of the meal and the employee must be paid at the employee’s regular rate of pay. As the time is work time, it must be counted as hours worked for overtime purposes. In addition, covered employees continue to be entitled to a duty free 30 minute meal period in accordance with the terms of the applicable Wage Order.

45.2.7 Premium For Failure Of The Employer To Provide The Meal Period. For each workday that the employer fails to provide the required meal period, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation. This premium pay is a “wage” under Labor Code § 200.

45.2.8 Premium For Missed Meal Period Is Only Imposed Once Each Day. No matter how many meal periods (rest period penalties are separate) are missed, only one meal period premium is imposed each day. Thus, if an employer employed an employee for twelve hours in one day without any meal period, the penalty would be only one hour at the employee’s regular rate of pay.

45.2.9 Premium Is Imposed For Failure To Provide Meal Period In Accordance With Applicable IWC Order. No employer shall require any employee to work during any meal period mandated by an applicable order of the Industrial Welfare Commission. If an employer fails to provide an employee a meal period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal period is not provided. (Labor Code § 226.7)

45.2.9.1 Relationship Between Record-Keeping Requirement And Meal Period. The employer has an obligation under the record-keeping requirements set forth in the Wage Order to track meal periods unless “all work ceases.”

45.2.10 Wage Order 16-2001 Meal Period Requirements. In addition to the requirements contained in the other Orders, Order 16-2001, Section 10(C), requires that the employer furnish “an adequate supply of potable water, soap, or other suitable agent and single use towels for hand washing.”

45.2.10.1 Note: In Orders 4 and 5, the IWC has determined that hours of work of employees in the Health Care Industry are to be determined by the federal definition of hours worked. Thus, as discussed at Section 47.3.2, et seq. of this Manual, the employees in the Health Care Industry may be required to remain on the premises during their paid meal period.

So generally speaking, you are due at least a 30 minute meal period after 6 hours of work, plus a second meal period after 10 hours of work, unless waived by both employee and employer.  And if your employer doesn’t avail you of at least one 30 minute meal period after 6 hours of work, he must pay you what your wage would be for that meal period.  They also must provide the means for keeping you clean and tidy.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Rest Periods

“I need a break!”  How many of us have uttered that famous phrase?  Turns out you not only need regular breaks, but they are also your legal right.  Employers who do not provide at least a 10 minute rest break per every four hours worked are breaking the law.  According to The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

45.3 Rest Periods. Section 12 of each of the Orders (except Order 16) provides:

(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

45.3.1 “Major Fraction”. In Brinker Restaurant Corporation v. Superior Court of San   Diego County (Hohnbaum) 1, the court interpreted the phrase “major fraction thereof” to mean the time period between three and one-half hours and four hours and does not mean that a rest period must be given every three and one-half hours. In so doing, the Court rejected as incorrect a 1999 interpretation by the Labor Commissioner that the term “major fraction thereof” means an employer must provide its employees with a 10-minute rest period when the employees work any time over the midpoint of each four hour block of time. The Court ruled that the rest periods must be given if an employee works between three and one-half hour and four hours, but if four or more hours are worked, it need be given only every four hours, not every three and one-half hours.

45.3.2 Rest Period Is Paid And Counted Toward Hours Worked. The regulation requires that the rest period time shall be counted as hours worked for which there shall be no deduction from wages.

45.3.3 The Rest Period Is A “Net” Ten Minutes. The IWC has provided that the rest period is net – in other words, the rest period begins when the employee reaches an area away from the work station that is appropriate for rest. The employee is entitled to one rest period per work period. This means than an employer may not (except in the case of certain workers in extended care homes under Order 5) count periods of less than 10 minutes as rest periods meeting the requirements of Section 12 of the IWC Orders. (O.L. 2002.02.22; 1986.0l.03)

45.3.4 Rest Period Is Not Limited To Toilet Breaks. The intent of the Industrial Welfare Commission regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. The conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms and Resting Facilities which requires that “Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.”

45.3.4.1 Allowing employees to use toilet facilities during working hours does not meet the employer’s obligations to provide rest periods as required by the IWC Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station; and, it does not indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.

45.3.5 Order 16, Exceptions. Order 16 covering the on-site occupations contains some exceptions which allow the employer to “stagger” the rest periods to avoid an interruption in the flow of work and maintain continuous operations. The DLSE has opined that an employer subject to Order 16 still may not schedule a rest period at the very beginning or very end of the workday. The very idea of a “rest period” is to provide the worker with needed rest time during the workday. (O .L. 2001.09.17)

45.3.6 Opt-Out Clause In CBA’s. Under Order 16 only, the IWC Orders provide that parties to collective bargaining may choose to opt-out of the rest period provisions if the CBA provides “equivalent protection ” for the workers.

45.3.6.1 Equivalent protection has been held to mean that the CBA must contain the same substantive requirements both as to the right to rest periods and the right to premium pay for rest period violations. (O .L. 2001.09.17)

45.3.6.2 In addition, if the CBA specifically provides final and binding arbitration for resolving disputes regarding the rest period provisions of a CBA, the collective bargaining agreement will prevail. The IWC announced in its Statement As To The Basis for Order 16-2001, that this language was intended to mean that the premium does not apply in the event that the CBA provides for final and binding arbitration of disputes involving the enforcement of the rest period provisions.

45.3.7 Premium For Failure To Provide Rest Periods is the same as that imposed for failure to provide meal periods. Note that only one hour for failure to provide a rest period may be imposed in each day regardless of the number of rest periods missed.

Of course, if you s  t  r  e  t  c  h your rest period out, attach it to a “bathroom break”, or otherwise abuse it, that’s not exactly “playing cricket” on your part, either.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Uniform and Tool Requirements

You’ve just landed a job at a fast food restaurant, but this is your first job, and you’re not sure how a lot of things work.  As in, do I have to pay for the uniform I have to wear?  Or, say you are starting a job as a nurse.  Who pays for the nurse’s uniform?  And if you are a mechanic, say, working for a company, do you have to pay for your own hand tools?  The answers to these questions depend on the criteria for whatever your particular situation is.  Following is relevant information from The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

45.5 Uniform And Tool Requirements.

45.5.1 The IWC Orders, Section 7, Section 9(A), provides, inter alia: When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term “uniform” includes wearing apparel and accessories of distinctive design or color.

45.5.2 Color And/Or Design. The Division has historically taken the position, based upon notes of the Commission, that nurses can wear their white uniforms wherever they work, and the employer, consequently, need not pay for them. Other workers in occupations for which the particular white uniform is generally useable would fall into the same category. (See, generally, O.L. 1994.02.16-1)

45.5.3 If, instead of being professional nurses, the individuals were house-keepers or clerical employees, the rationale contained in the Statement of Basis would not be applicable since a uniform would not be “generally usable in the occupation”. Consequently, any uniform (regardless of color) which is required to be worn by an individual in an occupation which would not generally wear that particular uniform, must be paid for by the employer. (See, generally, O.L. 1991.02.13)

45.5.4 If, for instance, given a choice of pastel or white uniforms, a pastel uniform were freely chosen by a nurse or other health care professional in an occupation which generally wears a white uniform, it is the opinion of the Division that it need not be paid for by the employer because the employer would not have been required to pay for the standard white uniform. The employee could not take advantage of the option and thereby create an obligation for the employer. Such would not be the case, of course, if the choice of wearing a standard white uniform were not available.

45.5.5 In the Statement of Basis for the Orders beginning in 1980, the IWC accepted DLSE enforcement policy: The definition and [DLSE] enforcement policy is sufficiently flexible to allow the employer to specify basic wardrobe items which are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified design, without requiring the employer to furnish such items. If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation the employee may not be required to pay for it.

45.5.6 Clothing And Accessories Of A Distinctive Design. DLSE has taken the position that clothes of a particular design (e.g., tropical shirts) would be so distinctive as to require that the employer pay the cost of such clothes. (O.L. 1990.09.18) In the case of DIR v. UI Video (1997) 55 Cal.App.4th 1084, the dress code imposed by the employer which was found to be a uniform consisted of a blue shirt and tan or khaki pants.

45.5.7 Tools. When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards.

45.5.8 Remedy. Failure of an employee to receive two times the minimum wage while still obligated to purchase the tool would result in the employer being liable for the cost of the tool or equipment under Labor Code § 2802.

45.5.8.1 Definition Of “Hand Tools And Equipment”. DLSE has opined that the term “hand tools and equipment” is to be given its literal meaning. Such hand held tools and hand held equipment do not include power driven tools or equipment. The IWC intended that the term be limited to hand held tools such as hammers or screw drivers. The word equipment is meant to encompass hand held measuring instruments or like apparatus. The IWC Statement As To The Basis of the 2000 Orders states: “This exception is quite narrow and is limited to hand (as opposed to power) tools and personal equipment, such as tool belts or tool boxes, that are needed by the employee to secure those hand tools.”

45.5.9 Deduction From Wages For Non-Return Of Uniforms Or Tools. The IWC, except in Order 1 6-2001, continues the language which ostensibly allows employers to deduct from an employee’s final wages for the cost of uniforms or tools provided by the employer and not returned. The Orders require that the deduction be authorized by a prior written authorization by the employee.

45.5.10 Caveat: It is important that Deputies note that the DLSE must enforce the IWC Orders as written; however, employers should be warned that the deduction language is not in compliance with Labor Code Section 224, 300 and 400-410. Also, of course, the IWC Orders specifically prohibit deductions for normal wear and tear.

45.5.11 Even if there is a deduction made, the deduction may only represent the reasonable cost of the equipment or tool provided by the employer and not returned. The burden is on the employer to establish the reasonable cost.

So, the answers to the above questions are varied.  In most cases, the employer does pay for the uniform.  However, there are exceptions for different nurses’ situations.  And finally, be sure to return those employer-provided uniforms or tools after you terminate employment – if you don’t, you’re paying for them.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Wage and Hour Theft Fines

WAGE AND HOUR THEFT FINES

Over half a million dollars.  That is what three adult care facilities based in the Oakland, California/Bay Area have been ordered to pay due to wage theft, which includes minimum wage, overtime and meal period violations.  That’s pretty painful punishment.

Following is a press release detailing the circumstances of the violations from the Department of Industrial Relations, California Labor Commissioner:

OAKLAND, Calif., May 21, 2013 /PRNewswire-USNewswire/ — California Labor Commissioner Julie A. Su issued citations totaling $584,635.97 to three Bay Area-based adult care facilities for wage theft, including minimum wage, overtime and meal break violations.

Two of the three facilities cited, Dream Care, LLC, dba Evergreen Terrace of San Ramon and New Hope Community Care, Inc. dba Angela’s Residential Care Home of Sunnyvale are residential adult care facilities while the third, Research and Results Team, LLC dba Beyond Potential Learning Center of Milpitas, is an adult day program facility serving developmentally disabled people.

“These citations serve as an important reminder that wage theft occurs in many industries and that Labor Commissioner Su is committed to enforcing the laws that protect California workers wherever necessary,” said Christine Baker, Director of the Department of Industrial Relations (DIR). The Labor Commissioner’s Office is a division within DIR.

“Caregivers who serve our elderly and disabled perform some of the most important and valuable work in our state and often work long hours to do so,” said Labor Commissioner Su. “Paying them for all of the hours they work is not only the fair thing to do, it is required by law.”

In the first case, Labor Commissioner Su ordered Dream Care, LLC, dba Evergreen Terrace, to pay $200,385 in unpaid overtime, as well as a $13,420 for no meal period premium and $3,541 in underpaid minimum wage to 16 employees. Employees were working a 24 hour shift without proper overtime premium pay.   Evergreen Terrace was also issued $57,427 in penalties for violating wage provisions, lapse in coverage of workers’ compensation insurance and failure to provide accurate itemized wage statements.

In the second case, New Hope Community Care, dba Angela’s Residential Care Home was ordered to pay $193,659 in unpaid overtime and $1,252 in underpaid minimum wages to 19 employees. Employees were working up to ten hours a day without proper overtime compensation. Labor Commissioner Su also ordered Angela’s Residential Care Home to pay $51,610 in penalties for violating minimum wage and overtime provisions, as well as failure to issue proper itemized wage statements.

In the third case, the Labor Commissioner ordered Research and Results Team, LLC dba Beyond Potential Learning Center in Milpitas, to pay $43,554 for unpaid meal period premiums, $6,692 in unpaid overtime, and $305 in unpaid split shift premiums to at least 20 workers. Employees at Beyond Potential Learning Center worked more than 12 hours a day without proper overtime compensation. Labor Commissioner Su also ordered Beyond Potential Learning Center to pay $15,550 in penalties for failure to pay overtime, split shift, and meal period premiums.

The Labor Commissioner’s office, also known as the Division of Labor Standards Enforcement, adjudicates wage claims, investigates discrimination and public works complaints and enforces state labor law. Additional information on labor laws and work related topics are available on our website as well as on Facebook and Twitter.

Employees with work-related questions or complaints may call the toll-free California Workers’ Information Line at (866) 924-9757 for recorded information, in English and Spanish, on a variety of work-related topics.

For media inquiries, contact Erika Monterroza at (510) 286-1164 or Peter Melton at (510) 286-7046.

We have written previously in this blog regarding wages, work hours, meal periods, etc.  It is disturbing to see such blatant violations coming to light just this week, especially in an occupation such as caregiving.  It is our hope that this is an isolated situation.  In any case, it is good to know there are avenues you can pursue if you find yourself in a similar situation.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Meals and Lodging Costs

Does your employer provide meals and/or lodging for you?  If so, do you know if these conditions are being handled fairly and lawfully?  There may be discrepancies against the law that you may not be aware of.  Here is some information on the subject, provided by The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department (apartment managers take special note):

45.4 Meals and Lodging Costs.

45.4.2 Only Actual Meal and Lodging Costs May Be Used As Credit Against The Employer’s Minimum Wage Obligation. The actual costs of meals and lodging may be offset against the minimum wage obligation of the employer. If the actual cost of the meal or the lodging is less than the rate shown in the Orders, only the actual amount may be credited.

45.4.3 Meals must be “an adequate, well-balanced serving of a variety of wholesome, nutritious foods…consistent with the employee’s work shift.”

45.4.4 Lodging means “living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed.”

45.4.5 Written Agreement Required For Credit Against Minimum Wage: Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee which explicitly references that such credits are being applied toward the minimum wage obligation of the employer. In addition, “Deductions shall not be made for meals not received nor lodging not used.”

45.4.6 Employer May Not Force Purchase On The Employee. As the California courts have determined, deductions by employers which amount to coerced purchases from the employer are forbidden by the provisions of Labor Code § 450. (SeeCalifornia State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340) Consequently, while the offer may be made by the employer, it may not be couched in terms of a requirement that the employee purchase the meal or the lodging.

45.4.6.1 Prior History. IWC Orders prior to 1976 had contained language which was silent on the question of the employer’s right to credit meals toward the employer’s minimum wage requirement. It had been the established practice in the restaurant industry up until 1976 to credit the minimum wage obligation if meals were “furnished or reasonably made available” to the employee. The Whitlow court noted that “In light of the prohibition against compelled purchases in section 450, the implied power of the commission to authorize in kind payments must be limited to situations in which such manner of payment is authorized by specific and prior voluntary employee consent. This limitation is consistent with the strong public policy favoring full payment of minimum wages, which the Legislature has effectuated by making payment of less than the minimum wage unlawful.” (Id., at 58 Cal.App.3d p. 348)

45.4.7 Labor Code § 1182.8. Labor Code § 1182.8 permits employers of apartment managers to charge up to two-thirds of the fair market rental value of an apartment if:

1. there is a voluntary written agreement, and

2. no portion of the rental charge is used to meet the minimum wage obligation.

45.4.7.1 This means that the manager must be paid at least the minimum wage for all of the hours worked and none of the apartment value may be credited toward that minimum wage obligation.

45.4.7.2 Calculating Overtime. In situations involving either charging two-thirds of the fair market value or use of the credits allowed in Section 10 of the Orders, if it becomes necessary to establish what the regular rate of pay is for purposes of overtime computation, the difference between the amount paid for rent or the amount taken as credit and the actual fair market value of the apartment must be figured into the calculation.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.

Hours Worked

“Hours Worked”.  Two simple words, but this post contains a wealth of information, any portion of which could be very important to you.  Do you travel frequently?  If so, you may have questions regarding your pay while you are traveling.  Do you frequently attend seminars, training, or off-site meetings?  Some of these may be covered as time worked by your employer, some may not.  Have you ever had a job interview during which the interviewer asked to see you demonstrate your skills at, say, typing?  Some of these “try-out times” are compensable (you are supposed to get paid), some are not.

There is a lot of information here, but it is definitely worth checking out.  According to The Enforcement Policies and Interpretation Manual issued by the Division of Labor Standards Enforcement Department:

46 HOURS WORKED.

46.1 Under the basic definition set out in all of the IWC Orders, “Hours Worked” means the time during which an employee is subject to the control of any employer, and includes all of the time the employee is suffered or permitted to work, whether or not required to do so. (e.g., Order 1-2000, § 2.(H).) Where it is determined that the employee’s time is subject to the control of the employer, as in the contexts delineated below, the time constitutes “hours worked”.

46.1.1 The DLSE Interpretation Of Hours Worked which provides that: “[U]nder California law it is only necessary that the worker be subject to the ‘control of the employer’ in order to be entitled to compensation” was found by the California Supreme Court to “be consistent with [the Court’s] independent analysis of hours worked.”  Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 583 [citing to DLSE O.L. 1993.03.31].

46.2 Travel Time: If an employee is required to report to the employer’s business premises before proceeding to an off-premises work site, all of the time from the moment of reporting until the employee is released to proceed directly to his or her home is time subject to the control of the employer, and constitutes hours worked. (O.L. 1994.02.16; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575.

46.3 Extended Travel Time. The California rule requires wages to be paid for all hours the employee is engaged in travel. The state law definition of “hours worked” does not distinguish between hours worked during “normal” working hours or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment or hours worked in connection with a one-day out-of-town assignment. These distinctions, and the treatment of some of this time as non-compensable, are purely creatures of the federal regulations, and are inconsistent with state law. (O.L. 2002.02.21).

46.3.1 Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked.” On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference in order to sightsee), is not compensable. If the employee’s travel from his home to the airport is the same or substantially the same as the distance (and time) between his home and usual place of reporting for work, the travel time would not begin until the employee reached the airport. The employee must be paid for all hours spent between the time he arrives at the airport and the time he arrives at his hotel. No further “travel” hours are incurred after the employee reaches his hotel and is then free to choose the place where he will go. (O.L. 2002.02.21)

46.3.2 Different Pay Rate For Travel Time Permissible. The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel begins. For purposes of determining the regular rate of pay for overtime work under the circumstances where a different rate is applied to travel time, the State of California adopts the “weighted average” method.

46.4 Uninterrupted Sleep Time. DLSE enforcement policy has historically allowed eight hours to be deducted if an employee is scheduled for 24- hour work shifts and is required to remain on the employer’s premises during the work shift and, in fact, receives eight hours of uninterrupted sleep. (But see specific exemption for ambulance drivers at Sections 47.3.1., 50.9.8 and 50.9.8.2 of this Manual). In addressing this issue, the Fourth District Court of Appeal in the case of Aguilar v. Association of Retarded Citizens (1991) 234 Cal.App.3d 21, upheld the DLSE policy:

First, the IWC Wage Order clearly distinguishes between employees who work 24-hour shifts and those who work less than 24-hour shifts. The Wage Order expressly provides an exemption from compensation for sleep time only for employees who work 24-hour shifts. The record is clear the employees here do not work 24-hour shifts.

Second, we do not find ARC’s characterization of the shifts as being 24-hour shifts with the employees being ‘temporar[ily] release[d]…to attend to personal interests’ to be persuasive . ARC’s characterization would abrogate the distinction between employees working 24-hour shifts and those working less than 24-hour shifts. Under ARC’s analysis, all employees in the work force could be characterized as working 24-hour shifts, with the only variation being the length of the ‘temporary release…to attend to personal interests.’ An accountant who worked 8 hours a day could be viewed as working a 24-hour shift with a 16-hour temporary release period. ARC’s interpretation requires a non-commonsense interpretation of the words; if IWC had intended the interpretation that ARC urges – that employers do not have to compensate employees working 17-hour shifts for sleep time – IWC easily could have so provided. They, however, did not. We conclude the employees here are entitled to compensation for all the hours worked; ARC is not entitled to deduct those hours when it allows the employees to sleep.

46.5 Meal Periods: Where an employee – although relieved of all duties – is not free to leave the work place during the time allotted to such employee for eating a meal, the meal period is on duty time subject to the control of the employer, and constitutes hours worked. Bono Enterprises v. Labor Commissioner (1995) 32 Cal.App.4th 968.

46.6 Caveat: Orders 4 and 5 contain a “Health Care Industry” exception which provides that “hours worked” is to be interpreted in accordance with the provisions of the Fair Labor Standards Act. This means that for the employees engaged in the “health care industry” the provisions of 29 CFR § 785.19(b) would apply and the Bono Enterprises case would have no applicability.

46.6.1 Note: The term used in the definitional language in Orders 4-2000 and 5-2000 states that “[W]ithin the health care industry, the term ‘hours worked’” is to be interpreted in accordance with the provisions of the Fair Labor Standards Act. However, the term “hours worked” in the definition is applied to employees, not employers. Consequently, it is the position of the DLSE that the IWC, in adopting this exemption to the narrow California definition of “hours worked”, only intended that the broader definition contained in the federal law was to apply to those who are defined at subsection 2(H) of those Orders as “employees in the Health Care industry”. Consequently, employees in hospitals, etc. who do not meet the criteria of “employees in the health care industry” as defined at IWC Order 5-2001, Section 2(G) will not be subject to the federal definition of “hours worked”.

46.6.1.1 Meal Periods Under Federal Regulations. 29 CFR 785.19(B), the federal regulation which discusses meal periods, allows an employer to require workers to remain on the premises during an off-duty meal period. This federal regulation does require that the meal period be duty-free and specifically requires that the employee be allowed to leave his or her work station during the meal period. It was the original intention of the IWC when the “health care” exception in the “hours worked” definition was adopted, that hospitals be allowed to require employees to remain on the premises during meal periods.

46.6.2 IWC Order 5, Section 11(C ) provides that under certain circumstances employees in group homes may be required to work “on duty” meal periods. If the employee under this provision is required to eat on premises, the meal period must be paid.

46.6.2.1 Note: A further discussion of the requirements of Meal Periods including the interpretation of “on-duty” meal periods and premiums for failure to provide meal periods can be found at Section 46.5 of this Manual. It must be noted at this point, however, that any premium imposed for failure to provide a meal period (or rest period) is not counted for purposes of calculating overtime.

46.6.3 Time Spent Waiting: The DLSE enforcement policy has consistently held that hours for which an employee has been hired to do nothing or merely to wait for something to happen are hours subject to the control of the employer, and constitute hours worked. (Armour & Co. v. Wantock (1944) 323 U.S. 126; Skidmore v. Swift (1944) 323 U.S. 134.) If, in the case of “standby” or “on call” status, the restrictions placed on the time of the employee are such that the employee is unable effectively to engage in private pursuits, the time is subject to the control of the employer and constitutes hours worked. (Madera Police Officers Association v. City of Madera (1984) 36 Cal.3d 403) (O.L. 1998.12.28)

46.6.4 Changing Uniforms or Washing Up at Work. Time spent changing clothes or washing up on the employer’s premises is compensable if it is compelled by the necessities of the employer’s business. (O .L. 1994.02.03-3; 1998.12.23) It should be noted, however, that for enforcement purposes, the Division utilizes a de minimis test concerning certain activities of employees (See Lindow v. United States 738 F .2d 1057 (9th Cir.1984)) Under this test the Division will consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time, and (3) the regularity of the additional activity. (O.L . 1988.05.16)

46.6.4.1 The only federal definition of the term “hours worked” is contained in the FLSA at 29 U.S.C. § 203(o) which simply excludes “any time spent in changing clothes or washing at the beginning or end of each work day.” Federal case law, however, has limited this exception and has held that any actions which are an integral and indispensable part of the employee’s principal activity task are compensable. (Steiner v. Mitchell, 350 U.S. 247 (1956) holding that time spent showering and changing at the beginning and end of each day in a battery plant is compensable.)

46.6.5 Training Programs, Lectures, Meetings. The Division utilizes the standards announced by the U.S. Department of Labor contained at 29 CFR §§ 785.27 through 785.31 in regard to lectures, meetings and training programs: Time spent by employees attending training programs, lectures and meetings are not counted as hours worked if the attendance is voluntary on the part of the employee and all the following criteria are met:

1. Attendance is outside regular working hours;

2. Attendance is voluntary: attendance is not voluntary if the employee is led to believe that present working conditions or the continuation of employment would be adversely affected by nonattendance;

3. The course, lecture, or meeting is not directly related to the employee’s job: training is directly related to an employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job or to a new or additional skill; and

4. The employee does not perform any productive work during such attendance.

46.6.6 Intern Programs. Historically, DLSE has required that in order to be exempt from the wage and hour requirements of the IWC Orders, the intern’s training must be an essential part of an established course of an accredited school or of an institution approved by a public agency to provide training for licensure or to qualify for a skilled vocation or profession. The program may not be for the benefit of any one employer, a regular employee may not be displaced by the trainee, and the training must be supervised by the school or a disinterested agency. (O.L. 1996.12.30)

46.6.7 All Training Programs, Lectures, Meetings, Etcetera Which Do Not Meet The Above Criteria Are Hours Worked. If any one of the above listed criterion is not met, the time is to be considered “hours worked”.

46.6.7.1 Independent Training. If an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the course is related to his or her job.

46.6.8 Special Situations. If an employer were to establish a program of instruction for the benefit of his employees which corresponds to courses offered by independent, bona fide institutions of learning (e.g., English lessons, literacy training), voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his or her job or the course were paid for by the employer.

46.7 Try Out Time. There may arise situations where an employer may wish to have a prospective employee exhibit skills such as typing, shorthand, or operation of machinery, before employment. The DLSE will accept such “try out time” as noncompensable if:

1. This time is not, in fact, training as opposed to testing skills;

2. there is no productivity derived from the work performed by the prospective employee, and

3. the period of time is reasonable under the circumstances.

46.7.1 Each case must be reviewed on its facts. For instance, the period of time to test skills of a sewing machine operator will be much less than that needed to test the skills of a computer programmer. While no particular time frame can be given, the rate of pay for the occupation can usually be used as a guide to determine the amount of time necessary for a “try out”.

46.7.2 Reporting Time Pay. The IWC Orders provide that if an employee is required to report for work and does report, but is not put to work or is furnished less than half the employee’s usual or scheduled day’s work, the employee shall be paid half of his or her regularly scheduled work, but in no event less than two hours nor more than four hours at the employee’s regular rate of pay. (See discussion at Section 45 of this Manual)

46.7.3 Reporting time pay, split shift differential, meal period premium pay, and rest period premium pay, although paid to employees in hourly increments as required under Wage Orders, do not constitute “hours worked” for purposes of calculating whether overtime is owed.

46.7.3.1 “Act Of God”. There are exceptions from the above requirements in the Orders one of which is in the event of an “act of God ” or beyond the employer’s control.

There are a lot of topics covered here under “Hours Worked”.  I hope some of it has been helpful to you.

As always, if you have any questions, consult competent legal counsel. At Rupal Law, we help our clients with issues related to employment law. We help employers and employees to navigate these complex problems.