Wage Law

Existing law, the Domestic Worker Bill of Rights (Labor Code section 1451-1453), regulates the hours of work of domestic work employees who are personal attendants and provides an overtime compensation rate for those employees. The Domestic Worker Bill of Rights defines terms for its purposes and requires the Governor to convene a committee to study and report to the Governor on the effects of its provisions on personal attendants and their employers.

Pursuant to Labor Code section 1453, the Domestic Worker Bill of Rights would be repealed as of January 1, 2017. SB 1015 deletes that repeal date. By extending the effect of the Domestic Worker Bill of Rights, the violation of which is a misdemeanor, this bill would expand the definition of a crime, which would impose a state-mandated local program. Here is the full text of the heart of the Domestic Worker Bill of Rights, Labor Code section 1451:

1451.  As used in this part, the following definitions apply:
   (a) (1) "Domestic work" means services related to the care of persons in private households or maintenance of private households or their premises. Domestic work occupations include childcare
providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations.
   (2) "Domestic work" does not include care of persons in facilities providing board or lodging in addition to medical, nursing, convalescent, aged, or child care, including, but not limited to,
residential care facilities for the elderly.
   (b) (1) "Domestic work employee" means an individual who performs domestic work and includes live-in domestic work employees and personal attendants.
   (2) "Domestic work employee" does not include any of the
following:
   (A) Any person who performs services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, or Sections 14132.95, 14132.952, and 14132.956 of, the Welfare and Institutions Code.
   (B) Any person who is the parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.
   (C) Any person under 18 years of age who is employed as a babysitter for a minor child of the domestic work employer in the employer's home.
   (D) Any person employed as a casual babysitter for a minor child
in the domestic employer's home. A casual babysitter is a person whose employment is irregular or intermittent and is not performed by an individual whose vocation is babysitting. If a person who
performs babysitting services on an irregular and intermittent basis does a significant amount of work other than supervising, feeding, and dressing a child, this exemption shall not apply and the person
shall be considered a domestic work employee. A person who is a casual babysitter who is over 18 years of age retains the right to payment of minimum wage for all hours worked, pursuant to Wage Order
No. 15-2001 of the Industrial Welfare Commission.
   (E) Any person employed by a licensed health facility, as defined in Section 1250 of the Health and Safety Code.
   (F) Any person who is employed pursuant to a voucher issued through a regional center or who is employed by, or contracts with, an organization vendored or contracted through a regional center or the State Department of Developmental Services pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code) or the California Early Intervention Services Act (Title 14 (commencing with Section 95000) of the Government Code) to provide services and support for persons with developmental disabilities, as defined in Section 4512 of the Welfare and Institutions Code, when any funding for those services is provided through the State Department of Developmental Services.
   (G) Any person who provides child care and who, pursuant to subdivision (d) or (f) of Section 1596.792 of the Health and Safety Code, is exempt from the licensing requirements of Chapters 3.4 (commencing with Section 1596.70), 3.5 (commencing with Section 1596.90), and 3.6 (commencing with Section 1597.30) of Division 2 of the Health and Safety Code, if the parent or guardian of the child to whom child care is provided receives child care and development services pursuant to any program authorized under the Child Care and Development Services Act (Chapter 2 (commencing with Section 8200) of Part 6 of Division 1 of Title 1 of the Education Code) or the California Work Opportunity and Responsibility to Kids Act (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code).
   (c) (1) "Domestic work employer" means a person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee.
   (2) "Domestic work employer" does not include any of the following:
   (A) Any person or entity that employs or exercises control over the wages, hours, or working conditions of an individual who performs domestic work services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, or Sections 14132.95, 14132.952, and 14132.956 of, the Welfare and Institutions Code or who is eligible for that program.
   (B) An employment agency that complies with Section 1812.5095 of the Civil Code and that operates solely to procure, offer, refer, provide, or attempt to provide work to domestic workers if the relationship between the employment agency and the domestic workers for whom the agency procures, offers, refers, provides, or attempts to provide domestic work is characterized by all of the factors listed in subdivision (b) of Section 1812.5095 of the Civil Code and Section 687.2 of the Unemployment Insurance Code.
   (C) A licensed health facility, as defined in Section 1250 of the
Health and Safety Code.
   (d) "Personal attendant" means any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, "no significant amount of work" means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

We once worked for a law firm where every single female associate earned less than every single male associate of equal seniority. Amazingly, none of the aggrieved and underpaid females complained. Had they done so (especially the ones who were planning to hang out a shingle soon anyway) they would have had a good case for a violation of Labor Code § 1197.5.

(a) No employer shall pay any individual in the employer's employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex.

(b) Any employer who violates subdivision (a) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and in an additional equal amount as liquidated damages.

(g) Any employee receiving less than the wage to which the employee is entitled under this section may recover in a civil action the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney's fees, notwithstanding any agreement to work for a lesser wage.

Though we are aware of no criminal prosecutions ever arising out of a violation of section 1197.5, Labor Code § 1199.5 provides that every employer "or other person acting either individually or as an officer, agent, or employee of another person" is guilty of a misdemeanor and is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than six months, or by both, who willfully does any of the following: (a) Pays or causes to be paid any employee a wage less than the rate paid to an employee of the opposite sex as required by Section 1197.5. (b) Reduces the wages of any employee in order to comply with Section 1197.5.

Thus, no employer can respond to a complaint by dropping everyone else's salary to match that of the lower-paid female. Bravo! Curiously, there is a "warning" provision in the statute, which says that no person shall be imprisoned under this statute for a first offense.

The reason we mention this, of course, is that we recently had a prospective client come in with what we believe to be a pretty good case. Any readers who would like to have their situations reviewed to see if they have a claim should never inquire by posting a comment. Instead, drop us an email and we would be happy to give you a free evaluation of your potential equal pay act violation.

A recent case illustrated the importance of understanding how employment laws differ between the public and private sector. Labor Code § 2802 provides, among other things, that

"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."

In In re Work Uniform Cases (2005) 133 Cal.App.4th 328, the court held that Labor Code § 2802 did not require public entities to pay claims for costs related to employee work uniforms. For county and city employees, pay for uniforms is part of the employees' compensation and is considered like any other payment of wages, compensation, or benefits.

This determination creates a conflict between an employee's right to reimbursement or indemnification for employee expenses under Labor Code § 2802 and a public entity's power to determine the compensation for its employees and to bargain with employee representatives under the Meyers-Milias-Brown Act (Government Code § 3500 et seq.)

The conflict was resolved in two ways, both weighing against the employees. First and foremost, the Supremacy of state constitutional provisions over contrary statutory provisions renders Section 2802 powerless against contrary provisions in Article XI of the California Constitution, which confers upon public agencies the power to prescribe the terms and compensation for their employees. Statutes which provide otherwise, including, arguably, Labor Code § 2802, infringe upon that constitutional delegation of power. Secondly, the broader provisions of Section 2802 are trumped by the specific treatment of public employee uniform obligations established under Government Code § 19850.1, which provides that "state employees shall be responsible for the purchase of uniforms required as a condition of employment. The state shall provide for an annual uniform allowance to state employees for the replacement of uniforms."

The private sector operates under different rules. Employee uniforms must be paid for by the employer, and uniform expenses are treated like a component of employee compensation. The Division of Labor Standards Enforcement is authorized to collect, as unpaid wages, the costs of required uniforms. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084. And virtually all of the IWC wage orders provide that "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." None of the wage orders, of course, apply to employees in the industries of government or government administration.

Unlike product liability and consumer cases, in most wage and hour class actions, notice is not published in any general circulation medium. Instead, notice of the class action and its settlement is provided by mail to an affected employee's last known address. What happens to the unlucky class member who moved and received no notice of a pending class action settlement? Under many circumstances, that employee has a good argument that he or she is not bound by the settlement.

What is clear is that unnamed class members are not bound by a settlement that does not comply with minimal due process requirements. Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 811-812. The class member must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable, "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." The notice must describe the action and the plaintiffs' rights in it. Additionally, due process requires, at a minimum, that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an "opt out" or "request for exclusion" form to the court. Finally, the Due Process Clause requires that the named plaintiff at all times adequately represent the interests of the absent class members. Id.

What is unclear is whether the settlement is binding upon those persons who do not get notice, when publication is not made, and individual notices are returned as undeliverable. We believe that under Phillips Petroleum and Hansberry v. Lee (1940) 311 U.S. 32, such notice is not proper as to those persons. The notice "must be the best practicable, 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. If the parties know, because of a returned notice, that the class member did not get adequate notice, then the notice procedure is not calculated, under all the circumstances to give notice to those particular class members.

Under Federal rules, FRCP Rule 23(c)(2) requires "the best notice practicable under the circumstances," and that individual notice need be given only to members of the class "who can be identified through reasonable effort." Sometimes, that means first class mail, not only upon certification of the class, but at each time notice would thereafter be necessary. Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 811-812, 86 L. Ed. 2d 628, 105 S. Ct. 2965; Eisen v. Carlisle & Jacquelin (1974) 417 U.S. 156, 173-176, 40 L. Ed. 2d 732, 94 S. Ct. 2140 [where names and addresses of 2,250,000 class members were easily ascertainable, individual notice had to be given]. In Cartt v. Superior Court (1975) 50 Cal.App.3d 960, in a consumer case, a California court held that meaningful notice must be given in a form that "should have a reasonable chance of reaching a substantial percentage of the class members." Under Civil Code § 1781(d), notice by publication may be ordered "if personal notification is unreasonably expensive or it appears that all members of the class cannot be notified personally."

Evidence of actual receipt is not required. But, at least in class actions for damages or similar relief, the claims of class members whose notices are returned as undeliverable must be excluded from any judgment in the class action. Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, at 813, 105 S.Ct. at 2975 (28,000 notices mailed, 1,500 returned as undeliverable). This does not, of course, invalidate the entire settlement. "Courts should not be deterred from Rule 23 economies in litigation by exaggerating the presumed requirements of due process, or by the specter of an occasional successful collateral attack on the basis of due-process." Philadelphia Electric Co. v. Anaconda American Brass Co. (E.D.Pa. 1968) 43 F.R.D. 452, 459. If the class member can show that the process was not reasonably calculated, under all the circumstances, to give him or her notice, then he or she would not be bound by the terms of the settlement. Other class members, however, will be.

A client came to us recently with a wage case. She had heard that the law had changed (actually, the law had no changed, but her employer had just started obeying it), and that she might now be entitled to back overtime. The problem was, she had no time records to support her claim. We told her not to worry, because the employer is required to keep those records, and we can get them from the employer through a written demand or via pre-trial discovery.

Employers must keep records of the names and addresses of all employees, the ages of any minors working, and daily hours worked and wages paid to all employees. Labor Code § 226, 1174, 1175. They must keep such records for a minimum of two years, and a year longer for wage deductions. The employer must allow inspection by the employee (and the DLSE, too). Labor Code §§ 226(a), 1174(d). Furthermore, the employer must provide an employee or former employee copies of his or her payroll records within 21 days after a request, or permit the employee to inspect those records. Failure to comply results in a $750 fine, and the employee may sue to obtain the information and recover costs and fees. Labor Code § 226(c),(f), (g).

Federal law imposed similar obligations. Every employer subject to the FLSA must "make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records" for specified periods of time. 29 USCA § 211(c). Those specified times are:

Three years: payroll records, including each employee's name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions; plans, trusts and collective bargaining agreements; employee notices; and · sales and purchase records. (29 CFR § 516.5)

Two years: time and earnings cards; wage rate tables; work schedules; order, shipping and billing records; and records of additions to or deductions from wages. (29 CFR § 516.6)

What if the employer throws out the work schedules, time cards or other records required to be kept?

It is the employer who is penalized, not the employee. If their employer fails to keep adequate records, employees suing to recover wages can meet their burden of proof simply by testifying that they performed work for which they have not been properly compensated. They do not have to prove the precise hours worked. They need only produce sufficient evidence to show the estimated amount and extent of such work, and an inference will be drawn that the estimate is correct, because the employer failed to maintain the most accurate records. See Beliz v. W.H. McLeod & Sons Packing Co. (5th Cir. 1985) 765 F.2d 1317, 1330-1331 ("Because precise evidence of the hours worked by each individual is not available due to the failure of [employers] to keep adequate records, the workers may satisfy their burden with admittedly inexact or approximate evidence.").

The burden of proof then shifts to the employer to come forward with evidence of the precise amount of work performed or sufficient evidence to refute the inference drawn from the employee's testimony. If the employer fails to meet that burden, the court awards damages to the employee according to the estimate provided by the employee. Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687-688, 66 S.Ct. 1187, 1192. And that happens quite frequently in our trials.

While perusing a site published by The Building and Construction Trades Department, we just found this informative article on the Davis Bacon Act -- the federal prevailing wage statute. It's worth reading, even if you think you know the prevailing wage law well.

Today, Republican Congressman John Boozman, whose district includes Wal-Mart's Bentonville, Arkansas headquarters, is sponsoring an amendment to a pending highway bill (H.R. 3, The Transportation Equity Act) that would extend the workday for truckers from 14 hours to 16 hours, provided that the trucker takes an unpaid two-hour break during the shift.

According to an AP report, Boozman claims that the breaks "will reduce driver layovers and improve both safety and efficiency." At a news conference on Tuesday, Teamsters vice-president John Murphy announced that the union has never received even a single complaint that union drivers do not have time for breaks. Current rules limit driver workdays to 14 hours, with a maximum of 11 consecutive hours of driving. Therefore, truckers can take up to three hours for loading and offloading their trucks, and/or eating and taking other mid-shift breaks.

Why would the Wal-Mart Congressman (Boozman's campaign received $48,152 in contributions from Wal-Mart employees during the last election, after getting $44,500 in the prior election) want such a change? Adding to the workday and inserting two-hour unpaid breaks means that retailers can have truckers spend more off-the-clock time waiting at loading docks. That helps Wal-Mart save labor costs.

But labor unions and highway safety experts say that the added hours of work would make roadways more dangerous. Drivers could be forced to work shifts such as 6 a.m. to 10 p.m., or 8 a.m. to midnight. Since many collective bargaining agreements permit employers to require trucker to work any shifts permissible under federal law, the change could quickly move many truckers into the new work hours. Putting those truckers, already fatigued at the end of 14 hour days, back on road for 2 more hours each day is a clear threat to the safety of truckers and those who share the highways with them.

Wal-Mart, which makes about $20,000 per minute in profits, and pays most store employees less wages than necessary to keep a family of three above the proverty level, continues to be the enemy of the working class. We hope that the Boozman Amendment to the House highway spending bill fails as quickly as the Santorum Amendment to the Senate bankruptcy bill.

[UPDATE: The proposed amendment lasted just ten minutes on the House floor before Boozman saw the light and withdrew it.]

Pennsylvania GOP Senator Rick Santorum, the hero of Lackawanna County, proposed an amendment to the pending bankruptcy "reform" bill (S.256) that could have actually lead to more Americans going broke. The bankruptcy bill, a big priority for Republicans and the credit card companies who finance their campaigns, is intended to make it more difficult for people to eliminate medical and other personal debts by declaring bankruptcy. And even worse, hidden in the Santorum Amendment were a number of provisions that could actually have resulted in companies being able to hire workers for no pay whatsoever. This is going to sound like an urban legend, the sort of thing that gets passed around by email, citing "Senate Bill 602P" or some such similar garbage. But it was true, very real, and could have become law faster than you can say "Class Action Fairness Act of 2005," or, in this case an amendment to the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005," intended "[t]o promote job creation, family time, and small business preservation in the adjustment of the Federal minimum wage."

The short description and the main selling point made it sound like good legislation. The Santorum Amendment, the actual text of which we had trouble finding, proposed to raise the minimum wage by $1.10 per hour -- a change which is arguably well overdue. The last minimum wage raise was eight years ago. Since then, inflation has shaved 19.4% off the value of those wages, and minimum wage workers, who currently earn $10,700 a year, now find their income a full $5,000 below the poverty line for a family of three. During those same eight years, Congress raised their own salaries seven times, by a total of $28,500 per year.

So the minimum wage raise looked like a pro-worker proposal. But the AFL-CIO called it "a sham," because hidden in the fine print of the Santorum Amendment were a series of provisions that would cut wages for millions of Americans to as little as zero. How? There were two provisions which spelled disaster for the workers who could least afford disaster.

First, the amendment exempted any business with revenues of $1 million or less from regulation. The current exemption is $500,000. The difference would have meant almost seven million workers losing their protections under federal law.

Second, the amendment severely limited the right of tipped workers to get wages paid by their employers. The FLSA (Fair Labor Standards Act) currently specifies that states have the right to impose higher wage standards than those under the FLSA. The Santorum Amendment proposed to end that when it comes to tipped employees. Moreover, it actually proposed to ban states from requiring employers to pay tipped workers with any sort of guaranteed wage. Currently, tipped workers are guaranteed just $2.13 per hour in wages under the FLSA, and they can be required to credit their tips against the FLSA minimum. Most states have higher minimum wages for tipped employees, and do not require tip offsetting. California, for example, applies the same minimum wage to tipped employees and non-tipped employees alike, with no offsets for tips.

Under the Santorum Amendment, states could not pass or enforce laws requiring employers to pay wages to tipped employees. And many employers, such as individual restaurant owners, would be exempt from the federal minimum wage because they don't reach that $1 million revenue level. The potential for abuse would be tremendous. Restaurant workers make no tips while performing "side work," the extra work that a custodian or other full time employee might perform, but which restaurants often have servers, bussers and bartenders divide: tasks like cleaning drains, sorting utensils, folding napkins, collecting laundry, washing floors and similar menial tasks. Under the Santorum Amendment, that work would be essentially free. Do you think employers would take advantage of it? And paid breaks? Forget them. The labor would be free already anyway. Breaks would just mean you have to stay later to complete your remaining unpaid tasks once the tipping customers have left for the day.

There were several other horrible provisions. The amendment would also have increased the revenue level at which businesses would become subject to fines under various health and safety laws, to $7 million. Working conditions that have been barred by federal laws for the past several generations could have made a comeback. While this would mean that American businesses could again compete with Bangladeshi sweatshops, this is not what most Americans wanted when they cast their votes for the candidates who promised more jobs in their communities.

Finally, the 40-hour work week was to be eliminated from federal protection, to be replaced with 80-hour work "two-weeks." A company could work employees 50 hours a week at straight time, and avoid liability for overtime pay by having the employees work just 30 hours the following week. Supposedly, this is a "flexibility" that workers want. We haven't heard the clamor, however.

The Santorum Amendment quietly came up for a vote last night and was soundly rejected 61-38 (with Senator Mikulski not casting a vote). Its defeat is good news for America's hardworking poor. If you agree, you can send Senator Santorum an email by visiting his website. Tell him you aren't sorry he lost, and he should be ashamed of himself for even trying. In his defense, Santorum offered this pathetic spin: "I would hope candidly that we didn't pass either of these at this time," he said, referring to both his amendment and one proposed by Ted Kennedy. Of course, that "candid" hope didn't prevent him from introducing his amendment or voting for it.

Meanwhile, the bankruptcy bill continues to be debated, focusing largely on a controversy over whether abortion protesters should be allowed to file bankruptcy to avoid court fines for contempt.

As expected, President Bush signed the Class Action "Fairness" Act of 2005 this morning. The law is intended to curb frivolous class actions by taking the very good cases, worth $5 million or more, and making them harder to pursue. The frivolous cases, worth less than $5 million, will still remain in state court, where they will continue to occasionally frustrate defendants and judges, enriching a very small number of plaintiff's lawyers and a somewhat larger count of defense lawyers, and benefitting few, if any, consumers. If the bill has an unintended result of letting big corporate donors off the hook for mass-inflicted harms on low wage workers, consumers and other individuals, that is probably a pure coincidence.

Next up for the Bush administration: fighting frivolous medical malpractice cases by capping the amount of damages that plaintiffs can recover in good cases. The logic, though flawed, is at least consistent.

The House of Representatives approved today the class action federalization bill that the Senate passed on February 10. President Bush is expected to sign the measure into law tommorrow. The House vote was 279-149, largely along party lines.

House leaders hailed the bill as a tool to prevent greedy lawyers from profiting by filing "frivolous lawsuits" in state court. Absurdly, they chose to battle these "frivolous lawsuits" solely by attacking claims worth more than $5 million, which, by most definitions, is more than a frivolous lawsuit is worth.

"Frivolous lawsuits are clogging America's judicial system, endangering America's small businesses, jeopardizing jobs and driving up prices for consumers," said House Majority Whip Roy Blunt. Moving those cases to federal court will ensure that state judges will no longer "routinely approve settlements in which the lawyers receive large fees and the class members receive virtually nothing," he added.

However, class actions in which the class members "receive virtually nothing" will be unaffected by the bill, since claims valued at $5 million and below are exempt from the new procedures.

"These out-of-control class action lawsuits are killing jobs, they're hurting small business people who can't afford to defend themselves and they're hurting consumers who have to pay more for products," said Rep. Ric Keller. Curiously, however, the bill will exclude most, if not all, lawsuits against "small business people", who rarely if ever find themselve defending against lawsuits, class action or otherwise, with claims in excess of $5 million.

Representative Jay Inslee was more honest. "This bill is the Vioxx protection bill, it is the Wal-Mart protection bill, it is the Tyco protection bill and it is the Enron protection bill," he said. "It's the final payback to the tobacco industry, to the asbestos industry, to the oil industry, to the chemical industry at the expense of ordinary families who need to be able go to court to protect their loved ones when their health has been compromised," said Rep. Ed Markey. "And these people are saying that your state isn't smart enough, your jurors aren't smart enough" to hear those cases.

The bill will only affect cases that are filed after president Bush signs it into law. We made a point of making sure our large class action cases were all filed before the courts close today.

The Class Action Fairness Act of 2005 moved through the Senate in just two weeks. Introduced on January 25, 2005, it was on the full Senate floor by February 7. It passed without amendment on February 10. The Chamber of Commerce is giddy. Full text of the passed bill can be seen here.

Why is this bill so bad? Senator Reid said it best. In his remarks, set forth in full at this link, he noted several circumstances in which cases would actually be thrown out of federal court on the ground that they involve too many issues of state law. Then, when the plaintiffs try to pursue their claim in state court, they will be unable to do so because only the federal court has jurisdiction. In other words, the worse the violation of state law, the easier it becomes for the corporation to avoid liability entirely!

Is this bill really about protecting working Americans and small businesses? As the saying goes: "Follow the money." This bill is about protecting the largest companies from liability for the most egregious acts against the largest number of individuals -- consumers and employees -- who have no viable recourse other than class action litigation. Who supported the senators who supported this bill? Check it out:

Goldman Sachs: $568,910
$281,590 to Sen. Charles Schumer [D-NY]
$22,250 to Sen. John Sununu [R-NH]
$38,750 to Sen. Joseph Lieberman [D-CT]
$19,000 to Sen. Blanche Lincoln [D-AR]
$90,320 to Sen. John McCain [R-AZ]
$70,000 to Sen. Christopher Dodd [D-CT]
$23,000 to Sen. Lamar Alexander [R-TN]
$24,000 to Sen. John Cornyn [R-TX]

MBNA Corp: $526,497
$34,500 to Sen. George Allen [R-VA]
$29,000 to Sen. Jon Kyl [R-AZ]
$129,447 to Sen. Thomas Carper [D-DE]
$52,800 to Sen. Michael DeWine [R-OH]
$164,750 to Sen. Olympia Snowe [R-ME]
$86,750 to Sen. Susan Collins [R-ME]
$29,250 to Sen. George Voinovich [R-OH]

Citigroup Inc: $520,790
$16,750 to Sen. John Sununu [R-NH]
$79,000 to Sen. Joseph Lieberman [D-CT]
$17,250 to Sen. Trent Lott [R-MS]
$92,750 to Sen. Christopher Dodd [D-CT]
$12,750 to Sen. Mel Martinez [R-FL]
$19,740 to Sen. Richard Santorum [R-PA]
$241,100 to Sen. Charles Schumer [D-NY]
$41,450 to Sen. John McCain [R-AZ]

Bear Stearns: $322,550
$26,000 to Sen. Richard Santorum [R-PA]
$122,400 to Sen. Christopher Dodd [D-CT]
$16,000 to Sen. Charles Grassley [R-IA]
$140,400 to Sen. Charles Schumer [D-NY]
$17,750 to Sen. Orrin Hatch [R-UT]

Do those firms have the financial ability to fight back against the so-called frivolous lawsuits that this bill purports to oppose? Of course. Two million dollars will beat a lot of frivolous lawsuits, and the lawyers who bring them, into oblivion. As it turns out, two million dollars can also help minimize the risk that a meritorious lawsuit will let these financial firms' victims find justice.

“The Senate has taken a critical step toward granting families, consumers and employers relief from the heavy burden of lawsuit abuse,” said Thomas Donohue, Chamber President and CEO of the U.S. Chamber Institute for Legal Reform . “Now it’s time for the House to finish the job and take back our civil justice system from plaintiffs’ lawyers seeking jackpot justice.”

Is class action litigation really about “jackpot justice?” It is this time. And Bear Stearns, Goldman Sachs, MBNA, Citigroup and every tortfeasing consumer cheater and labor law breaking employer just hit the jackpot.

The Class Action Fairness Act of 2005, aka the Big Government Federalization of Class Action Litigation Act of 2005, has made it to the floor of the U.S. Senate as Senate Bill S.5. The application of the act is set forth in section 4, which we will quote verbatim at the bottom of this post. We are more than a bit surprised at the breadth of its scope. As currently worded, it could apply to many California wage and hour class actions.

Why are they overhauling the system? Even Democrats disapprove of those coupon settlement shakedowns, where lawyers make big fees as part of coupon settlements that either sell good cases short, or satisfy the extortive demands that come with a frivolous class action. Though relatively few, these cases are the ones that  make the headlines and outrage most sensible people. "That system is broken and it needs fixing," said Senator Tom Carper (D-Del.) "There are too many instances where consumers are getting very little or nothing from their settlements, while companies are not being forced to change the way they do business."

Perhaps so, but restrictions on coupon settlements can be imposed easily without sending every partially diverse large class action to federal court. Wage and hour class actions, for example, are not among the devices which need such fixing. Businesses almost always change their illegal practices after a hit from a meritorious wage and hour class action. Moreover, Plaintiffs retain the bulk of the proceeds from settlements and judgments obtained through these actions, and lawyers for the class are rewarded only if they produce good results for the employees they represent.

But this bill is not about correcting injustice. It is about limiting the exposure of the largest companies who commit the most egregious violations of law. Because the bill only affects claims worth more than $5 million, the smallest, least meritorious cases -- the best candidates for coupon settlements -- are unaffected. In other words, this bill does not come close to doing what it purports to be enacted to do.

In that respect, the bill is a metaphor for the Republicans who seek and support it. The GOP is all for state rights, and minimizing federal interference in state rights, unless the states seek to control their own judicial systems so that they protect ordinary workers and consumers from the abuses of large corporations who finance the campaigns of Republican candidates for office.

Friends of working Americans will continue to fight against this restriction on the aggregation of workers' claims against unscrupulous employers. The best hope for wage and hour practitioners and their thousands of clients is the proposed civil rights/labor amendment to carve out state law civil rights and wage-and-hour cases from the bill. Without this amendment, the removal process in the bill would delay and, in some instances, cause the dismissal of meritorious class action cases. Here in California, one of the best ways to be heard is to contact Senator Dianne Feinstein, one of the bill's supporters among Senate Democrats. Supporting Consumer's Union is another. If you are not in California, you can reach your own Senator by calling the Capitol Switchboard at (202) 224-3121.
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The language of Section 4 of the bill is as follows:

SEC. 4. FEDERAL DISTRICT COURT JURISDICTION FOR INTERSTATE CLASS ACTIONS.

(a) APPLICATION OF FEDERAL DIVERSITY JURISDICTION- Section 1332 is amended--

(1) by redesignating subsection (d) as subsection (e); and

(2) by inserting after subsection (c) the following:

`(d)(1) In this subsection--

`(A) the term `class' means all of the class members in a class action;

`(B) the term `class action' means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action;

`(C) the term `class certification order' means an order issued by a court approving the treatment of some or all aspects of a civil action as a class action; and

`(D) the term `class members' means the persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.

`(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which--

`(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;

`(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

`(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

`(3) A district court may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction under paragraph (2) over a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed based on consideration of--

`(A) whether the claims asserted involve matters of national or interstate interest;

`(B) whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;

`(C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;

`(D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;

`(E) whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and

`(F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.

`(4) A district court shall decline to exercise jurisdiction under paragraph (2)--

`(A)(i) over a class action in which--

`(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;

`(II) at least 1 defendant is a defendant--

`(aa) from whom significant relief is sought by members of the plaintiff class;

`(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and

`(cc) who is a citizen of the State in which the action was originally filed; and

`(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and

`(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or

`(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.

`(5) Paragraphs (2) through (4) shall not apply to any class action in which--

`(A) the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; or

`(B) the number of members of all proposed plaintiff classes in the aggregate is less than 100.

`(6) In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.

`(7) Citizenship of the members of the proposed plaintiff classes shall be determined for purposes of paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint, or, if the case stated by the initial pleading is not subject to Federal jurisdiction, as of the date of service by plaintiffs of an amended pleading, motion, or other paper, indicating the existence of Federal jurisdiction.

`(8) This subsection shall apply to any class action before or after the entry of a class certification order by the court with respect to that action.

`(9) Paragraph (2) shall not apply to any class action that solely involves a claim--

`(A) concerning a covered security as defined under 16(f)(3) of the Securities Act of 1933 (15 U.S.C. 78p(f)(3)) and section 28(f)(5)(E) of the Securities Exchange Act of 1934 (15 U.S.C. 78bb(f)(5)(E));

`(B) that relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized; or

`(C) that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder).

`(10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized.

`(11)(A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs.

`(B)(i) As used in subparagraph (A), the term `mass action' means any civil action (except a civil action within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).

`(ii) As used in subparagraph (A), the term `mass action' shall not include any civil action in which--

`(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State.

The Schwarzenegger administration is seeking to pass new regulations which would jeopardize the right of most California workers to take lunch breaks. The new regulations cannot be passed until after public hearing are held and comments are received. Now is the time to be heard.

The proposed regulation would provide as follows:

TITLE 8. INDUSTRIAL RELATIONS
Division 1. Department of Industrial Relations
Chapter 6. Division of Labor Standards Enforcement
Subchapter 11. Meal and Rest Periods
§13700. Meal and Rest Periods
(a) Definition. As used in this section, “work period” means that period of time during which an employee is subject to the control of the employer. A work period begins at the time an employee begins work and ends at the time the employee either takes a meal period or stops work for the day. A new work period begins each time an employee resumes work after taking a meal period.
(b) Requirement to Provide Meal Periods
(1) An employer shall be deemed to have provided a meal period to an employee in accordance with Labor Code Section 512 if the employer:
a. Makes the meal period available to the employee and affords the opportunity to take it; andb. Posts the applicable order of the Industrial Welfare Commission; andc. Maintains accurate time records for covered employees, as required by the posted order;
(2) As a further precaution beyond the criteria required under (b)(1), an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period in a way that permits the employee to acknowledge in writing thathe or she understands those rights.
(c) Beginning of a Meal Period
(1) Employment of less than 6 hours per day 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. If the total work hours per day of the employee are no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.
(2) Employment of more than 6 hours, but less than ten hours, per day.Unless provided otherwise by an applicable order of the Industrial Welfare Commission, a meal period as required by Labor Code Section 512(a) may begin before the end of the sixth hour of the work period.a. An employer may not require an employee to begin a meal period after the end of the sixth hour of work, except as provided in Labor Code sections 512 (b) or (c).b. If an employee requests a meal period to begin after the end of the sixth hour of work, an employer is not in violation of Labor Code 512 so long as the employee was provided the availability and opportunity to take a meal period before the end of the sixth hour of work.
(3) Employment more than ten hours but less than twelve hours per day.An employer may not employ an employee for more than 10 hours per day without providing a second meal period of not less than 30minutes, 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.
(4) Examples
Example 1: A non-exempt employee begins work at 8:00 a.m. andworks without a meal period until 1:00 p.m. The employer is required to provide a meal period to the employee at this point ,as the employee will work more than 5 hours. However, if the employee’s work will end no later than 2:00 p.m., the meal period may be waived by mutual consent of the employer and the employee.Example 2: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:10 p.m. The employee has worked over 5 hours and is entitled to a meal period. The employee has not requested the meal period to begin after the end of the sixth hour of work. Without the employee’s request, the employer may not require the meal period to begin after 2 p.m. as this would beafter the end of the sixth hour.Example 3: A non-exempt employee begins work at 8:00 a.m. and is provided a meal period, which begins at 10:30 a.m. The beginning of the meal period ends the initial work period of that employee’s work. Upon returning to work at 11:00 a.m., the employee commences a new work period. The employee then works until 4:00 p.m. If the employee continues work beyond this point, the employer is required to provide another meal period to the employee, as the work period will exceed five hours. However, if the employee’s work will end by 5:00 p.m., the second meal period may be waived by mutual consent of the employer and the employee.Example 4: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:00 p.m. After taking a half-hour meal period, the employee returns to work at 1:30 p.m. and works until 6:30 p.m. If the employee works beyond this time, the employer is required to provide a second meal period to the employee. However, because the total hours worked by the employee in the day exceeds 10 hours, but not more than twelve, the second meal period may be waived by mutual consent of the employer and the employee as the first meal period was not waived.
(d) Penalty for Failure to Provide Meal or Rest Period. Any amount paid or owed by an employer to an employee under Labor Code section 226.7, subdivision (b), for failing to provide the employee a meal period or rest period in accordance with anapplicable order of the Industrial Welfare Commission is a penalty and not a wage.(e) Severability. If the application of any provision of this regulation, or any section, subsection, subdivision, sentence, clause, phrase, word or portion thereof should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein.Authority: Sections 53, 54, 55, 59, 95, 98, 98.8, 1193.5, and 1198.4, Labor Code.Reference: Sections 226.7 and 512, Labor Code

Three public hearings have been scheduled to permit all interested persons the opportunity to present statements or arguments, either orally or in writing, relevant to the proposed action noted above. The Division of Labor Standards Enforcement (DLSE) requests, but does not require, that persons who make oral comments at the hearing also submit a written copy of their testimony. The hearings will be held at the following times and places:

Los Angeles
Date: Friday, February 4, 2005
Time: 9:00 a.m.
Place: Ronald Reagan State Building, Auditorium
300 South Spring Street, Los Angeles, CA 90013

San Francisco
Date: Tuesday, February 8, 2005
Time: 9:00 a.m.
Place: Hiram Johnson State Building, Auditorium
455 Golden Gate Avenue San Francisco, CA 94102

Fresno
Date: Monday, February 14, 2005
Time: 9:00 a.m.
Place: Fresno State Building, Room 1036
2550 Mariposa Mall Fresno, CA 93721

Any interested person, or authorized representative, may submit written comments to the DLSE relevant to the proposed regulatory action. The written comment period closes at 5:00 p.m. on Monday, February 14, 2005. All comments must be submitted in writing (by mail, fax, or email) and received by that time at the DLSE's headquarters office. Submit comments to:

Allen Perlof, Senior Deputy Labor Commissioner
Division of Labor Standards Enforcement, 9th Floor West
Post Office Box 420603
San Francisco, CA 94142
Email: [email protected]
Fax: (415) 703-4807

Don't let this opportunity to speak out pass you by.

We often hear from employees who think that they have signed away their claim for back wages because their employer demanded a release before they could receive their final payroll check. Usually, they are seeking consultations not for wage claims, but to see if they have a wrongful termination claim. The bad news, sometimes, is that their firing was lawful. The good news, sometimes, is that the release they signed was invalid.

The factual scenario is usually a variation on this theme: the employee is due a certain amount of wages. The employer offers less, and refuses to pay even the lower amount unless the employee signs the release. Under what circumstances is that release going to be upheld?

The standard for enforceability of a mandatory wage claim release is simple. If the release only absolves the employer of liability for the wages being paid, or if the release is given in connection with a full and complete payment of all wages due, then the release will be enforceable. If not, the release isn't worth the hot air coming out of the defense lawyer reading it into the record.

The language of the law can be found in California Labor Code § 206.5

No employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made. Any release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee and the violation of the provisions of this section shall be a misdemeanor.

The code's imposition of misdemeanor liability can give rise to punitive damages. Under Civil Code § 3294, punitive damages are recoverable where a plaintiff can prove malice, fraud or oppression. That standard is generally met where a defendant's conduct is "in blatant violation of law or policy." Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.

So an employee who was shorted on his or her final wages does not need to worry about the existence of a release. To the contrary, the employer's heavy-handed tactics could leave the company liable for substantially more than the wages that were originally due. If you would like to have your situation reviewed to see if you have a claim, drop us an email and we would be happy to give you an evaluation.

Employers often receive solicitations from services that charge a small fortune to keep them informed of the latests state and federal posting requirements. The expense is needless. The Department of Industrial Relations provides this information at no cost. All an employer need do is review the chart and links shown on this DIR web page.

On August 11, 2004, Governor Schwarzenegger signed into law Senate Bill 1809 which amended the Labor Code Private Attorneys General Act of 2004, Labor Code §§ 2699, et seq., to require certain written notices to be given prior to the commencement of litigation to recover penalties under that act.

Specifically, Labor Code § 2699.3 provides that

(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: (1) The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.

Those written notices, that are required under the Labor Code Private Attorneys General Act of 2004 to be sent to the Labor and Workforce Development Agency, can be sent by certified mail to the following address:

Labor and Workforce Development Agency
801 K Street, Suite 2101
Sacramento, CA 95814

Assemblywoman Sally Lieber has introduced a new minimum wage bill, the first wage and hour bill of the new year. AB 48 is currently only a skeleton.

Existing law requires establishment of a minimum wage for all industries of not less than $5.75 per hour on and after March 1, 1998. Under existing law, the Industrial Welfare Commission is authorized to determine minimum wages in accordance with a prescribed procedure that includes the selection of wage boards to consider and make recommendations regarding wage issues. The current minimum wage for all industries is $6.75 per hour. This bill would state the intent of the Legislature to increase the minimum wage effective on and after January 1, 2005.

The text merely states:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.  It is the intent of the Legislature to enact egislation that would increase the minimum wage for all industries effective on and after January 1, 2005.

Sources claim that the bill will seek an increase in the range of $1-per-hour, to $7.75 per hour. A similar two-phased increase was vetoed by Governor Schwarzenegger in September 2004. This time, however, Lieber reportedly hopes to tie future increases to a cost-of-living index, so that the minimum wage would rise along with inflation.

The federal minimum wage is a mere $5.15 per hour. Lieber argues that raising the state's minimum wage could benefit all taxpayers by reducing demand on public services by more than a million low-paid workers. Republicans are expected to oppose the measure, and a veto will likely follow if it passes.

Labor Code § 226(a) provides that:

Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an existing employee identification number other than a social security number may be shown on the check, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.  The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.

The last part of (7) is newly enacted. This requirement -- that employers omit all but the last four digits of employees's social security number on their paystubs -- does not go into effect until 2008. By then, one would hope that every large employer in the state would know about it. The certainly will have plently of defense firm newsletters to warn them.

Should they choose to disregard the new identity theft protections, they could face penalties of up to $100 per employee, per pay period, to a maximum of $4,000 to each worker.

The California Industrial Welfare Commission Wage Orders provide virtually every non-exempt worker in the State of California with the right to an uninterrupted, paid rest period of ten minutes for every four hours of work, or "major fraction thereof." The wage order language is virtually the same for each industry:

(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 work day that the rest period is not provided.

Contrary to what some managers tell their employees, there is no "restaurant exception." Restaurant workers are covered by the Public Housekeeping Wage Order.

What does a "major fraction thereof" mean? During the first four hours, the wage order itself answers the question. If you worked less than 3 ½, you need not take a break. If you worked more than 3 ½ hours, you get a break. After that, the threshhold is "more than half" of the period. Thus, your second break is earned once your shift is more than two hours into the second four hour period; in other words, after the six-hour mark. A third break is due after the tenth hour of work.

Deputy Secretary Mike Prosio has confirmed that the DLSE has withdrawn the proposed emergency meal and rest break regulation. The proposal will now proceed on the regular regulation track, which requires a 45 day comment period and three public hearings. The Office of Administrative Law received more comments on this than any proposed emergency regulation in its history.

The Schwarzenegger administration is seeking an emergency order that would jeopardize the right of most California workers to take lunch breaks. The administration calls the proposal a clarification of current law to stem lawsuits against employers who are confused about when to provide the breaks when they can deny workers their breaks.

The administration's statement of reasons said the proposed regulation would:  (1) establish criteria to determine if an employer has met the requirement of providing a meal period; (2) clarify that employees may chose to begin the initial meal period in a workday by the end of the sixth hour of the workday; (3) provide a definition of the term “work period”; and (4) clarify that the one hour of pay an employer must pay an employee for each workday in which a meal or rest period is not provided in accordance with the applicable Industrial Welfare Commission Order is considered a penalty. The Office of Administrative Law was given until December 20 to decide on the proposed regulation.

Current law provides that an employee may not work more than five hours without a 30-minute, uninterrupted lunch break. The new "emergency" regulation would give employers the right to schedule a lunch during their workers' sixth hour of work. Furthermore, companies could meet the lunch break requirement if "the employer informs an employee of the circumstances under which the employee is entitled to a meal period and the employee acknowledges in writing that he or she understands those rights."

The new rules also seek to reduce the time period in which a worker could file a complaint from three years to one, on the ground that the pay due under Labor Code § 226.7 is a "penalty, not wages." Section 226.7 states:

(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest 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 or rest period is not provided.

A spokesman for the administration claimed that the new regulation is "not intended in any way to minimize employee rights to their meal or rest periods," but instead, is "designed to give them more flexibility in scheduling." However, the regulation, for which the Chamber of Commerce practically begged, is sought by exactly zero employee groups. Employees simply are not seeking the freedom to work longer hours without breaks.

Why Is This Proposal So Wrong?

1.  Meal and rest periods benefit both employees and employers. Except for those who have proverbial whips cracked over them at all times, workers who do not get breaks are less productive workers than those who get breaks. And fatigued workers cause more accidents and call in sick more frequently.

2.  The "written notice exception" gives employers the right to coerce employees to sign away their rights. Our law firm has several cases pending against employers who, as part of new employee orientation, hand each and every new worker a break waiver, which they are told they must sign if they want to work. This new proposal tells employers that these tactics are acceptable.

3.  The proposal is not a clarification; it is a reversal of existing law. The position taken by the DLSE in its June 11, 2003 opinion letter was that the hour of pay for working through rest or meal periods is a wage, which brings with it a three-year statute of limitations. A change in this rule could mean that corporations like Wal-Mart, being sued after cheating their low-earning workers out of their breaks, could be let off the hook, and their employees would get nothing.

4.  The proposal attempts to circumvent the authority of the courts. Regulations are intended to regulate future conduct or transactions, not to "clarify" existing law, prior conduct or completed transactions. The legislature cannot interpret the law; only the judiciary can. Therefore, a statute or regulation cannot declare that it sets forth "existing law." It can only change the law prospectively. McClung v. EDD (2004) 34 Cal.4th 467. And even then, a regulation can only change the administrative law.

5.  The proposal attempts to circumvent the authority of the legislature. The proposed regulation conflicts with Labor Code § 512 and the applicable wage orders by creating exceptions that allow employers to meet their mandatory duty to “provide” breaks merely by informing an employee of his or her right to a meal period and having the employee acknowledge in writing that he or she understands those rights. Thus, the code giveth, and the reg taketh away. This is not permissible. The California Administrative Procedure Act states: "Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute. " (Government Code §11342.2). See Pulaski v. California Occupational Safety and Health Standards Board (1999) 75 Cal.App. 4th 1315, 1338-1341 (a regulatory exemption declared invalid because it conflicted with intent of the statute).

6.  The legislative intent of Labor Code § 226.7 was to treat the hour of pay as a wage. Contrary to an "urban legend" being spread by employment defense lawyers, the legislative history of Labor Code § 226.7 shows that the legislature intended to make the extra hour of pay, due to employees who are not given lunches or breaks, a wage, not a penalty." Early versions of section 226.7 included language providing a remedy described as: (1) a $50 penalty, in addition to (2) payment of wages. However, the language about a "penalty" was omitted and never became part of the final statute. Law is well settled that "[w]hen the legislature rejects language from a bill which was part of it when it was introduced, it should be construed according to the final version." Stroh v. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040, 1055.  Moreover, the August 28, 2000 Senate Floor Analysis called the hour of pay "wages", saying that the "[f]ailure to provide such meal and rest periods would subject an employer to paying the worker one hour of wages for each work day when rest periods were not offered." Elsewhere in this analysis, the Senate refers to the "penalty" for 30 days wages, as well as "penal damages" of $50 per violation/$100 for subsequent violations for record-keeping violations, yet it was careful to call the hour of compensation a wage, rather than a penalty.

7.  The Industrial Welfare Commission, not the DLSE, has the legislative authority to promulgate regulations pertaining to wages, hours and working conditions. (See Labor Code § 1173, Labor Code §§ 1182 - 1184, Labor Code § 1193.5, Labor Code §§ 516-517) If the IWC is unable to act (i.e., now that the IWC has been de-funded) the legislature must either delegate an alternate authority or act directly. (See California Constitution, Article XIV, § 1)

8.  The proposal is not an emergency, because it is not necessary for the immediate preservation of public peace, health and safety, or general welfare. If anything, it adversely affects the people's health and safety. The regulation fails to meet the standards of an emergency by showing specific facts supporting the need for immediate action. (Government Code § 11346.1)