Wage Law

In Rosenfield v. Global Tranz Enterprises (9th Cir. 13-15292 12/14/15), the Ninth Circuit has reversed a district court’s summary judgment in favor of the employer on an employee’s claim under the anti-retaliation provision of the Fair Labor Standards Act. Applying the “fair notice” test for deciding whether the employee had “filed any complaint," the panel considered whether, pursuant to Kasten v. Saint-Gobain Performance Plastics Corp. (2011) 563 U.S. 1, the complaint was “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The Court held that a complaining employee’s position is an important part of the “context” that the fact finder must consider, but the panel declined to formulate or adopt a special bright-line rule to apply when considering whether a manager has “filed any complaint” within the meaning of 29 U.S.C. § 215(a)(3).

Therefore, the panel held that a jury reasonably could find that the employee filed a complaint, and it reversed the district court’s summary judgment and remanded for further proceedings.

For the full opinion in PDF, click this link.

The FLSA and the California Labor Code require that non-exempt employees must be paid for all hours actually worked. Therefore, an employee who works the 2 o'clock hour on Daylight Saving Time, and then again works the 2 o'clock hour on Standard Time has worked two hours and is entitled to payment for both. See, e.g., DOL Advisement on Daylight Savings [sic] Time.

To our surprise, there are some employers who believe that someone who worked from 10:00 p.m. on Saturday to 6:00 a.m. on Sunday is entitled to be paid for no more than 8 hours. Such an employee actually worked nine hours and is entitled to 8 hours of regular pay and 1 hour of overtime.

"They'll make it up in March when they get paid 8 hours of pay for 7 hours of work" is not a defense.

The Ninth Circuit's opinion in Sullivan v. Oracle Corp. (9th Cir. 2008) 547 F.3d 1177, 14 Wage & Hour Cas.2d (BNA) 321, has been withdrawn, and the Ninth Circuit has certified three questions to the California Supreme Court. Sullivan v. Oracle Corporation (9th Cir. 06-56649 2/17/09).

We certify the following questions to the California Supreme Court, corresponding to the three claims presented by the plaintiffs.

First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

Second, does (California Business and Professions Code) § 17200 apply to the overtime work described in question one?

Third, does § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?

By separate order, we today withdraw our published panel opinion in this appeal, pending a decision by the California Supreme Court on the questions of California law that we now certify. If the California Supreme Court decides any or all of the certified questions, we will accept and rely on the Court’s decision of that question or those questions in any further proceedings in this court.

The order certifying these questions can be found at this link. The order withdrawing the prior published opinion can be found at this link. Our previous post about the original opinion can be found at this link.

Does the California Labor Code protect out-of-state residents who work in California? Can the California Unfair Competition Law be used as a long-arm statute to pursue remedies for FLSA violations that occur outside of California? Yes. And no. Non-Californians may invoke the Labor Code or the UCL for labor they perform in California, but cannot assert a cause of action under California’s UCL for violations of the FLSA which occurred outside the State of California. Sullivan v. Oracle Corp. (9th Cir. 2008) 547 F.3d 1177, 14 Wage & Hour Cas.2d (BNA) 321.

We reverse the district court’s grant of summary judgment on Plaintiffs’ first two claims. We hold that California’s Labor Code applies to work performed in California by nonresidents of California. We affirm the district court’s grant of summary judgment on Plaintiffs’ third claim. We hold that § 17200 does not apply to allegedly unlawful behavior occurring outside California causing injury to nonresidents of California.

You can download the full text of the case here in PDF.

The Supreme Court of the United States last month denied certiorari in a 3rd Circuit FLSA case entitled Philadelphia v. Lawrence. The issue involved whether paramedics trained in — but found not to be responsible for — fire suppression are exempt from overtime requirements under the Fair Labor Standards Act. The Third Circuit Court ruled that the paramedics were not exempt from overtime pay under federal law.

Without running afoul of the Fair Labor Standards Act or various California Labor Code provisions, a public entity is permitted to contract with employees to have the workers reimburse training costs if they leave their jobs within a certain time period. At least, the employer can do so if the employee fails to allege a violation of Labor Code § 2802. Nonetheless, employers cannot withhold a worker's final paycheck as a set-off to cover the expenses. City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477.

The City of Oakland sued appellant Kenny D. Hassey for breach of contract after Hassey failed to reimburse the city (as agreed) for the costs of training him to become a police officer with the Oakland Police Department. Hassey filed a cross-complaint against Oakland and respondent Richard Word, the chief of the Oakland Police Department, alleging that the agreement to repay Oakland for training costs violated the Fair Labor Standards Act (29 U.S.C. §§ 201-219 (FLSA)) and various state laws. Specifically, the cross-complaint alleged causes of action for deprivation of civil rights (42 U.S.C. § 1983); violation of the FLSA; violations of Labor Code sections 221, 223, 432.5, and 450; “unlawful contract” (Civ. Code, §§ 1667-1668); “void contract” (Bus. & Prof. Code, § 16600); and unfair competition (Bus. & Prof. Code, § 17200). More notably, the cross-complaint failed to assert that the repayment agreement violates Labor Code sections 2802 [employer shall indemnify employee for all necessary expenditures and losses] and 2804 [any contract waiving provision invalid]. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.

The trial court granted Oakland’s motion for summary judgment on its complaint, granted its motion for summary judgment on Hassey’s cross-complaint, and denied Hassey’s summary judgment motion on both complaints. The Court of Appeal concluded that Hassey failed to establish that the agreement to reimburse Oakland for training costs violated the FLSA, although Oakland’s withholding of Hassey’s final paycheck to cover his debt did.

The opinion was subsequently modified, and a petition for rehearing was denied. The modification was noteworthy, because it noted that one of the reasons Hassey might have lost was that he didn't rely on a statute that might have savd his case.

Appellant's petition for rehearing is denied. The opinion filed June 17, 2008, is modified as follows: Add, as the last three sentences of the eleventh paragraph in part II.A.2. of the opinion, "We decline to address Hassey's argument, raised for the first time in his reply brief, that the repayment agreement violates Labor Code sections 2802 [employer shall indemnify employee for all necessary expenditures and losses] and 2804 [any contract waiving provision invalid]. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [points raised in reply brief for first time will not be considered absent good cause].) We note that Hassey's answer to Oakland's complaint did not rely on Labor Code sections 2802 and 2804, and his cross-complaint did not allege causes of action based on them." The above modification does not effect any change in the judgment. [emphasis added]

Would Hassey have won a defense or cross-claim based upon Section 2802? Here's what section 2802 provides:

(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

(b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.

(c) For purposes of this section, the term "necessary expenditures or losses" shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section.

Since the training was a prerequisite to getting the job in the first place, it's unclear. Moreover, the opinion relies somewhat on a 7th Circuit case entitled Heder v. City of Two Rivers (7th Cir. 2002) 295 F.3d 777, in which public policy concerns based upon the employer's status as a public entity, and particularly, an agency providing for public safety, suggest that a similar case brought against a private entity might face a different standard. Because section 2802 wasn't raised by Hassey until his appellate briefs, we'll have to wait for some other case to answer that question.

The Supreme Court denied a petition for review and a request for depublication. Justice Kennard voted in favor of review. You can download City of Oakland v. Hassey here in pdf or MS Word format.