Presentation on theme: "WAGE & HOUR CLAIMS, CONCERNS & CLASS ACTIONS IN CALIFORNIA Managing Employees With Success June 2011 Presented by Al Landegger & Michael S. Lavenant."— Presentation transcript:
1WAGE & HOUR CLAIMS, CONCERNS & CLASS ACTIONS IN CALIFORNIA Managing Employees With Success June 2011 Presented by Al Landegger & Michael S. Lavenant
23. Unreimbursed Expenses TOP THREE WAGE AND HOUR CLAIMS YOU SHOULD EXPECT TO BE SUED FOR AND HOW TO AVOID CLAIMS1. OvertimeMisclassificationUnpaid OvertimeOff The Clock Work2. Meal & Rest Periods3. Unreimbursed Expenses
3TOP THREE WAGE AND HOUR CLAIMS YOU SHOULD EXPECT TO BE SUED FOR AND HOW TO AVOID LITIGATION Topics to be coveredWage & Hour Class ActionsReasons class actions for wage and hour claims are increasingSignificant decisionsUnique issues for wage and hour claimsPreventative advice and strategic litigation issuesMisclassificationStandard ExemptionsOff the Clock WorkDonning & DonningPreliminary & PostliminaryAutomatic deductionsMeal & Rest PeriodsUnreimbursed Expenses
4Explosion of Wage & Hour Class Actions Reasons for Increase:Eight-Hour-Day Restoration andWorkplace Flexibility Act of 1999Private Attorney General Act of 2004Class Action Fairness Act of 2005Revised FLSA RegulationsKey Court DecisionsAttractive Court Verdicts/Settlements
5Appellate Court Decisions Cortez v. Purolator Air Filtration Products(2000) 23 Cal.4th 163 [4 Year SOL]Bell v. Farmers Insurance Exchange(2001) 87 Cal.App.4th 805 [Production/Administrative Dichotomy]IBP v. Alvarez(2005) 546 US 21 [Donning & Doffing]Murphy v. Kenneth Cole Productions(2007) 40 Cal.4th 1094 [Labor Code Wage/Penalty]
6Appellate Court Decisions White v. Starbucks(2007) 497 F.Supp.2d 1080 [Permit and authorize meal periods]Brinker Restaurants v. Superior Court(2008) [State court recognizes flexibility in meal and rest periods as well as employee time keeping requirements]Gattuso v. Harte-Hanks Shoppers(2007) 42 Cal.4th 554 [Alternative methods of expense reimbursement approved]Schachter v. Citigroup(2009) 47 Cal.4th 610[Economic realities of compensation agreement controls]
7Unique Issues In Wage & Hour Claims Burden is on employer to establish exemptions and record hours workedEmployer must also force employees to take unwanted meal periodsVast difference between FLSA and California Labor CodeConfusing laws and Labor Commissioner interpretationsTechnical violations create liabilityMost laws provide for recovery of attorneys’ fees to employees, not employers
8Example of Exposure Labor Code Section 226 requires 9 items: Gross wagesTotal hours workedPiece rate and number of unitsAll deductionsNet wagesPay periodName of employee and EIN or last 4 digits of SSNName and address of employerAll hourly rates and hours worked for each rateMissing any one above can result in penalties [$50/$100/$4000]
9Overtime Rules Preliminary Considerations: “Workday” and “Workweek” “Workday” is defined as “any consecutive 24-hour period commencing at the same time each calendar day.”A “workweek” is “any 7 consecutive days, starting with the same calendar day each week.” A “workweek” is a “fixed and regularly recurring period of 168 hours, 7 consecutive 24-hour periods.”
10Overtime Rules Preliminary Considerations: “Shift” is defined as “designated hours of work by an employee, with a designated beginning time and quitting time.” This has ramifications, particularly with respect to alternative workweeks.Once the workweek is established, it cannot be changed unless the change is intended to be permanent and not designed to evade overtime requirements. Each workweek stands alone, and simply having a 2-week pay period does not allow the employer to average the 2 weeks’ hours.
11Overtime RulesGenerally, premium pay to non-exempt employees in California is required in five different situations:Over 8 hours of work in a work day (time and one-half)Over 40 hours of work in a workweek (also consistent with federal law) (time and one-half)
12Overtime RulesCont.The first 8 hours of work on the 7th consecutive day of work in a workweek (time and one-half) (note that the employee must work all 7 days in the workweek: merely working 7 consecutive days, if the days cross over into another workweek, will not qualify the employee for the 7th day premium)Over 12 hours of work in a work day (double time)Over 8 hours of work on a 7th consecutive day in a workweek (double time) (private employers only)
13Overtime Rules Cont. Federal law only has a 40-hour week. “Anti-pyramiding” rules provide that employers need not combine more than one rate of overtime compensation (example: employee works 42 hours in a week, including 10 hours on one day). The 41st and 42nd hour must be compensated, but they will be deemed equivalent to the 9th and 10th hour on the one day of overtime worked, so only one set of overtime need be paid.
14Overtime Rules Limited Exceptions for Overtime: Alternative Workweek SchedulesEmployees may be allowed a set schedule or menu of options that would allow employees to work up to 10 hours in a day (no more than 40 hours in a workweek) without the payment of overtime.Make-up Time provisionsEmployee is allowed to work up to 11 hours in a day without overtime payment if they are “making up” time they lost in the SAME WORKWEEK due to personal circumstances.Employee must make the request – Employer is not permitted to coerce or intimidate employees in their decision.Employers are permitted to have a policy and form.
15Which Wage Order? Which Wage Order Applies - IWC Classifications Industry vs. Occupational Wage OrderIndustry Wage Order - Wage Order 1-3, 5-13 are “industry” wage orders.These wage orders cover ALL employees of companies that conduct business within a particular industry - even office or administrative staff.If the business is comprised of several industries, more than one wage order may be applicable to the different portions of the integrated business.
16Which Wage Order? Which Wage Order Applies - IWC Classifications If a business is not covered by a particular “industry” as defined in the wage order, then an occupational order may apply.Occupation Wage Order - Wage Order 4, are occupational wage orders.These wage orders cover only particular jobs.Wage Order 16 and 17 are new to California and cover industry that previously may have been exempted from the wage orders.Businesses that are not subject to an “industry” wage order may be covered by more than one occupational wage order.
17Employee Misclassification There are only three major overtime exemptions in California.ExecutiveAdministrativeProfessionalThese are similar BUT DIFFERENT under federal law.Employer must comply with the one that provides the most protection for the employee.The job description is helpful, but only the start of the analysis.
18Employee Misclassification These three exemptions are similar BUT DIFFERENT under federal law.Employer must comply with the one that provides the most protection for the employee.The job description is helpful, but only the start of the analysis.
19Employee Misclassification Executive Exemption:Salary Test:Must earn salary minimum of $33,280.Employee is paid for QUALITY of work not QUANTITY of work.Duties Test:Supervise 2 or more employees.Exercise discretion and independent judgment in management.Must be engaged in these activities more than 50% of their time.Must have the authority to hire or fire other EE’s or have particular weight given to his/her suggestions and recommendations as to hiring, firing, advancement, promotion, or any other change of status.Must manage an entire business or have management responsibility over a customarily recognized department or subdivision of the business.
20Employee Misclassification Administrative Exemption:Salary Test:Must earn salary minimum of $33,280.Employee is paid for QUALITY of work not QUANTITY of work.Duties Test:Provide direction on the operations of the enterprise – not the service or sale of goods.Exercise discretion and independent judgment.Must be engaged in these activities more than 50% of their time.Most difficult to interpretVery little guidanceMost misused – especially in financial industryExamples of work directly related to assisting the running or servicing of the business:Tax preparationFinanceAccountingQuality controlAdvertisingLegal & regulatory complianceTypes of administrative employees who typically qualify for exempt statusInsurance claims adjustersFinancial service employeesHuman resource managersExecutive and administrative assistants – to the president or general managerCredit managersPurchasing AgentsSafety Directors
21Employee Misclassification Professional Exemption:Salary Test:Must earn salary minimum of $33,280.Employee is paid for QUALITY of work not QUANTITY of work.Duties Test:Must be licensed in one of the enumerated professions recognized by the State of California.Exercise discretion and independent judgment.Must be engaged in these activities more than 50% of their time.
22Employee Misclassification Salesperson Exemption:Outside Sales:Employee is completely exempt from overtime.Employee is also exempt from meal and rest periods.Employee must spend more than one-half of their time outside of office.
23Employee Misclassification Salesperson Exemption:Inside Sales:Employee may be exempt from overtime.Must earn at least one and one-half times the minimum wage for all hours worked and more than half of that employee’s compensation represents commissions.Still subject to all other protections – meal and rest breaks.
24Employee Misclassification Special Rules for Out of State Employees:Sullivan v. Oracle Corp.:California Supreme Court is reviewing issue of whether non-exempt employee that is based outside of California but performs work in California is entitled to overtime pursuant to California law or the federal Fair Labor Standards Act which does not:Require premium unless the employee works more than 40 hours in a weekRequire meal or rest periodsMay also have an impact on “borderline” FLSA-exempt employees who would be classified as non-exempt employees in California.
25Employee Timekeeping Off-The-Clock Work Employer’s obligation to record all time worked.Employee should be directed not to perform work that is not accounted for in the timecard.Employee should sign timecard, acknowledging true and accurate recordkeeping.Travel TimeTraining, meetings, lectures, conferences.NOTE: Employee can have different rates for different type of work – such as travel time at minimum wage.
26Employee Timekeeping Unauthorized Overtime Employees who work unauthorized overtime MUST be paid premium pay, but can be disciplined.
27Preliminary & Postliminary Donning and doffingPreparing equipmentSecurity screening
28Donning & DoffingConflicting authority as to whether donning/doffing “protected gear” is a principal activity.DOL--if the employer requires donning and doffing of protective gear at the employer’s premises then it is a principal activity.…whether required gear is ‘unique’ or ‘non-unique’ is irrelevant to the principal activity analysis.
29Donning & DoffingNinth Circuit: “This ‘integral and indispensable’ conclusion extends to donning, doffing and cleaning of non-unique gear (e.g., hardhats) and unique gear (e.g., Kevlar gloves) alike.”Tenth Circuit: donning and doffing safety glasses, earplugs, hard hat, and safety shoes, “although essential to the job, and required by the employer,” were non-compensable pre- and postliminary activities.Second Circuit: “[t]he donning and doffing of generic protective gear is not rendered integral by being required by the employer or by government regulations…nuclear power plant employees need not be paid for time spent donning and doffing a helmet, safety glasses, and safety boots before and after their work shifts.
30Preparing EquipmentTruck drivers entitled to compensation for such pre-trip activities as loading their trucks and conducting a pre-trip inspection of their vehicles.Employees who use service vehicles may also be entitled to compensation for time spent loading and unloading the vehicle, fueling, and cleaning the vehicle where such tasks are necessary part of the job.Note – New 9th Circuit decision in Rutti v. Lojack concerns at-home preparation and use of company vehicles.
31Security ScreeningSecurity screening activities may be necessary or “indispensable,” BUT they are not necessarily “integral” to the principal work and thus not compensable.Construction workers need not be paid for time spent passing through airport security because such a security regime was required by law and did not benefit the employer.
32Automatic DeductionsIf the employee only clocks in at the start of the shift and clocks out at the end, the employer may be liable for unpaid wages if deduction was made by employer for break but break was never taken, or taken in the full amount.Some employers automatically deduct from employees’ wages an amount for a non-compensable break or meal period.California law and the FLSA requires that employees be compensated for all time worked.
33Employee Breaks Meal Periods: Employee must receive 30-minute, duty-free meal period if they work more than 5 hours in a workday.Period may be waived by mutual consent if the employee works 6 hours or less.Absent exigent circumstances, period can not be waived if employee works more than 6 hours.Employer should permit and authorize employee to take meal period.Meal period starting and stopping times should be documented.
34Employee Breaks Meal Periods: Employee who works 5 hours or less is not required to have a meal period.Until the California Supreme Court decides the Brinker Restaurants decision, the requisite meal period should not be taken at a time when the employee will work more than 5 hours after returning from the first meal period without taking a second meal period.A second meal period is required if an employee works more than 10 hours.If more than 10, but less than 12, second meal period can be waived by written agreement if the first meal period was taken.
35Employee Breaks Rest Periods: Employee must receive 10-minute, duty-free rest period for every 4 hours of work, or major fraction thereof.Employer should permit and authorize employee to take rest period.Rest periods and meal period cannot be pooled.Rest period starting and stopping times do not have to be documented.
36Employee Expenses Labor Code Section 2802: Provides that all expenses necessarily incurred by the employee in discharge of their duties to the employer must be reimbursed.Use of Personal Automobile – Reimburse IRS rate.Cell phone.Personal computer or office equipment.Uniforms.Meals and Entertainment.Liability.
37Preventative Solutions Conduct internal audit to determine areas of potential exposureReview job descriptions/classificationsFollow record keeping requirementsReview payroll practicesPrepare & Regularly Review Employee HandbookReview and understand applicable wage ordersTrain HR personnelEnforce meal/rest period policies
38Preventative Solutions Develop timekeeping proceduresDevelop reimbursement policiesUniformsMileageTools & EquipmentConsider varying evaluations, job descriptions, standards, rules and procedures by location or individualsCommunicate legal requirements to employees
39Use of Experts Current management personnel Several types of professionals can assist in the avoidance or defense of these claims:Current management personnelTimekeeping and Payroll companiesLegal counselFinancial advisorsCPAs/AccountantsOther labor consultants or experts
40Use of ExpertsCurrent PersonnelManagement level employees have unique knowledge concerning the application of company policies to day-to-day operations.Supervisory employees are aware of the existence of information relevant to the claims.Employees may have unique knowledge to impeach claimants.
41Use of Experts Timekeeping and Payroll Companies May provide guidance on overtime issues;May provide assistance on meal and rest period penalties; orMay assume liability for errors.
42Use of Experts Legal Counsel Competent employment law counsel should be engaged from the beginning.Key in providing necessary detection and avoidance training to HR, management and other supervisory personnel.Prompt evaluation of claims will assist company in making an informed decision.Issues of jurisdiction, forum, venue, or pleadings present at the outset of the case may impact outcome.
43Use of Experts CPAs/Accountants/Financial Advisors Accountants may have records concerning payroll.Assist in defending against claims that expenses were properly reimbursed.Have ability to conduct exposure analysis.Interpret financial stability of company to play a part in negotiated or court-approved settlement.Financial Advisors provide benefit programs that create satisfied employees.
44Use of Experts HR/Labor Consultants Can provide input as to the exempt status of employees named in claim.Can determine if meal and rest periods are being followed.Analyze whether all required expenses are being reimbursed properly.Information TechnologyForensic experts can assist in locating documents vital to a defense even if it has been deleted.Forensic experts can also play a role in meeting the obligation to preserve all electronic evidence and search for relevant data.
45Q & A Questions? For more information contact: Alfred J. Landegger, Esq.Michael S. Lavenant, Esq.LANDEGGER BARON LAVENANT & INGBER15760 Ventura Blvd., Suite 1200Encino, California 91436751 Daily Drive, Suite 325Camarillo, California 93010Los Angeles Office:Ventura County Office: