On September 28, 2020, Governor Newsom signed Assembly Bill 2017, which revises Labor Code § 233 (also known as the “Kin Care” law) to provide that an employee has the right to designate sick leave as for kin care; or for the employee’s own health condition or for obtaining relief if the employee is
Hazel U. Poei
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Meal and Rest Break Premiums Payable at Base Rate, Not Regular Rate of Pay
By Eric J. Gitig & Hazel U. Poei on
Posted in Wage and Hour
A California state appellate court has ruled that the correct rate for paying meal and rest period premiums is one hour of pay at an employee’s base hourly rate, not the regular rate of pay used for calculating overtime wages. This is the first published California case to make this distinction.
Pursuant to § 226.7…
Under Wage Order 5, On Duty Meal Periods Must Be At Least 30 Minutes in Length
By Hazel U. Poei & Eve Tilley-Coulson on
Posted in Wage and Hour
By way of background, in Palacio v. Jan & Gail’s Care Homes, Inc. (2015) 242 Cal.App.4th 1133, the Fifth District Court of Appeal considered the interplay between subdivisions 11(A) and 11(E) of Wage Order No. 5.
Subdivision 11(A) allows employers and employees to agree that meal periods will be on duty and to revoke…
California Supreme Court Holds that Plaintiffs Cannot Utilize Conversion Claims to Recover Unpaid Wages
By Hazel U. Poei & Zoe E. Tremayne on
Posted in Wage and Hour
The California Supreme Court recently held that the tort claim of conversion is not an appropriate vehicle for plaintiffs seeking recovery of unpaid wages. In Voris v. Lampert (Cal. 2019) Case No. S241812, the plaintiff brought suit against three start-up ventures and two individual defendants to recover wages which had been promised to the plaintiff…
Ninth Circuit Asks California Supreme Court: Is Absence of a Formal Meal and Rest Break Policy a Violation of California Law?
By Hazel U. Poei & Sarah H. Scheinhorn on
Posted in Class Actions, Wage and Hour
In Brinker Rest. Corp. v. Superior Court (53 Cal. 4th 1004), the California Supreme Court explained that an employer must relieve the employee of all duty for the designated meal period, but need not ensure that the employee does not work. In other words, no policing of meal breaks by the employer is required; and…
Looking Back and Looking Forward: Retroactivity and Expansion of the California Independent Contractor Test
By Joelle A. Mervin & Hazel U. Poei on
Posted in Wage and Hour
In April 2018, the California Supreme Court issued its ruling in Dynamex Operations West v. Superior Court (2018) 4 Cal. 5th 903, 916-17 and set forth the standards for determining independent contractor status for purposes of the California Industrial Welfare Commission Wage Orders. The Court presumed that a worker is an employee unless he or…
Federal Law Preempts California’s Meal and Rest Break Laws for Commercial Drivers
By Sehreen Ladak & Hazel U. Poei on
Posted in Wage and Hour
Judge George H. Wu of the United States District Court for the Central District of California recently dismissed meal and rest break claims brought under the California Labor Code in a class action against motor carrier U.S. Xpress.
In Anthony Ayala v. U.S. Xpress Enterprises, Inc. et al, Judge Wu granted U.S. Xpress’ motion…
Employers, Politics, and Free Speech
By Shaina L. Kinsberg & Hazel U. Poei on
With political campaigns well underway, the protection of “free speech” and concerns that regular political discourse could create potential liability are mounting. Notably, within the last year, California’s Fair Employment and Housing Commission expanded upon a number of definitions and specific employment practices prohibited under the Fair Employment and Housing Act (“FEHA”). Not listed among…
Assembly Bill Codifying Dynamex Moves Forward, with Notable Exemptions
By Benjamin A. Tulis & Hazel U. Poei on
Posted in Wage and Hour
On March 26, 2019, proposed Assembly Bill 5, which would codify the California Supreme Court’s controversial Dynamex decision, was amended to exempt certain types of licensed workers. Just as noteworthy as the types of workers identified as exempt from the standard are the types of employees who were not identified. For example, the exemption does…
Payroll Company Not Liable Under Third Party Beneficiary Doctrine
By Eric J. Gitig & Hazel U. Poei on
Posted in Wage and Hour
On February 7, 2019, the California Supreme Court determined that an employee cannot sue a payroll company for breach of contract under the third party beneficiary doctrine, and that it is inappropriate to impose a tort duty of care upon a payroll company with regards to the obligations owed to an employee under the applicable…