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We are frequently surprised that many businesses fail to grasp and correctly apply the criteria for determining when an employee can be classified as Exempt from overtime and/or meal and rest break laws. Employers often assume, based on a worker’s position in the organization, or because s/he is paid a salary, that s/he is automatically Exempt.
We are surprised, not because the standards for determination of Exempt status are straightforward and easy to apply (Sometimes they are not!), but because the consequences of misclassifying an employee as Exempt can be major, including administrative claims or civil lawsuits for unpaid wages, unpaid overtime, failure to provide rest/meal breaks, liquidated damages, waiting time penalties and related damages (including the employee’s attorney’s fees). Have we got your attention?
The Labor Commissioner applies two (2) standards to determine when an employee can be properly classified as Exempt: (1) the Duties Test; and (2) the Salary Threshold. Exempt employees must fit within one of the following limited list of categories: Executive, Administrative, Professional, Computer/Software, Outside Sales, state or county employees, and a few others.
The Duties Test examines the work performed by the employee during the workweek. For example, the Executive Exemption is limited to an employee whose “duties and responsibilities involve the management of the enterprise or a department or subdivision of the enterprise, who customarily and regularly directs the work of two or more other employees, and who has authority to hire or fire other employees or whose views as to the hiring, firing, advancement, promotion or any other change of status of other employees will be given weight, and who customarily and regularly exercises discretion and independent judgment. There is a different Duties Test for each category of Exempt employee.
The Salary Threshold requires one exempt under the Executive Exemption to earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week. There is a similar Salary Threshold for most other Exempt categories.
Depending on the circumstances, these tests may be easy or difficult to apply regarding a given employee. Additionally, there are traps for unwary with regard to the Salary Threshold where the worker, for example, meets the Salary Threshold most weeks, but falls below it on a given week.
Employers looking to follow best practices should have their Exempt classification decisions reviewed by employment law counsel or, at minimum, someone with significant Human Resources experience, such as an HR Consultant or a member of the Society for Human Resource Management (SHRM) or its affiliate, Professionals in Human Resources Association (PIHRA).
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A California appellate court recently affirmed a trial court victory on behalf of Ralphs Grocery Co., in a case alleging the grocer should have provided suitable seating to its cashiers.
By way of background, most California Industrial Wage (IWC) orders require employers to provide workers “suitable seating” under two circumstances: (1) when the nature of the work reasonably permits the use of seats; and (2) when an employee is not actively engaged in duties that require standing, or during “lulls in operation.”
Former Ralphs employee Jill LaFace sued Ralphs, arguing that cashiers could reasonably perform their cashiering duties while seated and that the company was also obligated to provide seats for cashiers to use during “lulls in operation.” Following a nonjury trial, Los Angeles Superior Court Judge Patricia Nieto held that the nature of LaFace’s work did not permit sitting because “Ralphs cashiers continuously perform work that should or even must be performed while standing.” She also held that Ralphs had no obligation to provide seating for use during “lulls in operation” because the cashiers were expected to remain busy between customers.
LaFace appealed. The appellate court ruled that an employer does not have to provide seating where the employer expects employees to keep busy and not stand, which functionally means there is no “lull” in duties. The court also held that employees bringing suitable seating claims and other claims for penalties under California’s Private Attorneys General Act (PAGA) are not entitled to a jury trial, which may also be seen as a victory for California employers.
For employers of workers where there is some question whether seating may be required, this case highlights the need for an established, clearly comunicated policy. Either employees may be permitted to sit while performing their job or during lulls, in which case suitable seating should be provided, or written policies communicated to workers should make it clear that employees are expected to remain busy, even during lulls in operation.
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On February 10, 2022, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual harassment Act of 2021 (HR. 4445). When signed by President Biden (expected any day), it will amend the Federal Arbitration Act (FAA) to bar forced pre-dispute arbitration of workplace sexual assault and sexual harassment claims. The law will also bar waivers by employees of the right to bring such claims on a class basis.
The new law also requires that a court—not an arbitrator—decide whether a claim constitutes sexual harassment or sexual assault, even if the arbitration agreement requires such decision be made by the arbitrator.
In light of this development, we suggest employers who require employees to sign mandatory arbitration agreements include a “carve-out” for claims of workplace sexual assault or harassment. At a minimum, any arbitration agreement should contain a carve-out for disputes that are barred by applicable federal or state law.
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On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114 which resurrects COVID-19 Supplemental Paid Sick Leave (the “SPSL”) for 2022.
This version of SPSL took effect February 19, 2022, however, it applies retroactively to January 1, 2022. It expires September 30, 2022. Employers with more than 25 employees are covered.
The following are covered reasons for using SPSL:
SPSL benefits:
Additional Facts About SPSL:
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Just before Christmas, a California appeals court gave the green light to a wrongful death lawsuit claiming that an employee brought Covid-19 home from work and infected a family member, who subsequently died.
The employer, See’s Candy, had asked the courts to shut the case down because the claim falls under the exclusive remedy of the California Workers’ Compensation Act (WCA). Under the WCA, employees who suffer illness from the workplace are entitled to compensation without needing to sue the employer in court. Since early in the Covid-19 pandemic, it has been clear that employees who link their own Covid-19 infection to their job get WCA benefits.
The courts refused to dismiss the case, reasoning that WCA benefits do not extend to injuries or illness by non-employees, and so they are not prohibited from pursuing the employer in civil court.
Importantly, the family still faces several hurdles, including establishing that the employer owed a “duty of care”* to the employee’s relative (a question not answered in the See’s Candy opinion), that the employer breached such a “duty of care,” and, perhaps most difficult, that the employer was the source of the deceased relative’s infection.
Employers’ best takeaway from this case is to ensure your practices align with all state and federal government and OSHA mandates (such as those discussed above). This will not only reduce the spread of infection, but may be valuable evidence, if you are confronted with such a case, to prove you did not act unreasonably.
*Deepest apologies for the unavoidable legalese.
Senate Bill (SB) 331, signed into law, expands that prohibition to include allegations of other acts of workplace harassment or discrimination that are not based on sex. The law applies to agreements signed on or after January 1, 2022.
| A California appellate court has issued an opinion, All of Us or None v. Hamrick, which will almost certainly delay the process of obtaining criminal background checks for employers. Criminal background searches are a legal requirement for employers in many industries.Companies performing background checks rely, in part, on searches of criminal case indexes using date of birth and driver’s license number.
In All of Us or None v. Hamrick, a civil rights organization supporting ex-offenders sued the Riverside Superior Court claiming it permitted searches using dates of birth and driver’s license numbers, in violation of California Rule of Court, Rule 2.507. The trial court threw the case out. But the California Court of Appeal reversed, emphasizing the privacy interests of ex-offenders. While the case was brought against the Riverside Court, it will impact searches of most courts because CRC Rule 2.507 is a statewide law. |
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Sadly, COVID-19 remains with us. In an ongoing effort to control the spread of the virus, our state and federal governments continue to push forward regulations and policies guaranteed to impact the workplace. Here are some important developments:
School Workers Must Prove Vaccination or Weekly COVID-19 TestingOn August 11, 2021, the state of California ordered all workers in public and private K-12 schools to show proof of vaccination. Workers unable to show proof of vaccination must undergo weekly PCR or antigen testing for COVID-19. Schools with unvaccinated workers should develop a plan to track testing results and conduct contact tracing. Results must be submitted to local public health departments. Covered schools have until October 15, 2021 to comply with requirements.
Nursing Homes Mandate Staff Vaccinations or Face Federal Funding LossOn August 18, 2021, President Biden directed the Department of Health and Human Services to require nursing homes to require all employees be vaccinated against COVID-19 or face possible loss of Medicare and Medicaid funding. There is presently no deadline for compliance. However, any California nursing home that has not already mandated employee vaccination in compliance with the California Department of Public Health’s August 5th order that all health care workers to be vaccinated by September 30, 2021, should ensure compliance.
California Legislature Contemplates Statewide Workplace Vaccine MandateRumors out of Sacramento suggest the California legislature is contemplating a statewide mandate that all employers require employees in every industry to be vaccinated against COVID-19 or undergo weekly testing. If such legislation comes to fruition, California would lead the nation in workplace vaccine mandates.
Importantly, there is no draft bill and any legislation would need to clear hurdles, including possible resistance from business interests, and may hinge on the outcome of the election to recall Gov. Newsom.
Cal/OSHA Encourages Masking Indoors Regardless of Vaccination StatusIn an August 25th press release, Cal/OSHA said, “as a best practice, Cal/OSHA encourages employers and workers to follow the recent update from the [California Department of Public Health] recommending that all individuals wear face coverings while indoors regardless of vaccination status.”
This is a recommendation only and the election by employers not to require vaccinated workers to wear masks will not expose them to Cal/OSHA penalties. This could change and we will continue to monitor the situation. Additionally, a California Department of Public Health Guidance published on July 28, 2021, requires masks “for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).” Exceptions to this broad mandate apply.
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On July 15, 2021, the California Supreme Court, in Ferra v. Loews Hollywood Hotel, LLC, clarified the rule for calculating the premium required when employees are unable, because of workload, to take a timely rest or meal period. Given the potential for employees to sue employers in class actions for failing to strictly comply with this rule, and the fact that the holding applies retroactively, this is a significant development.
By way of background, California employers are required to provide nonexempt employees a paid 10-minute rest period for every 4-hours of work, and an unpaid 30-minute uninterrupted meal period by the end of the 5th hour (and 10th hour, if applicable) of work. These rules should already be quite familiar to employers.
The California legislature recognizes this is not always possible due to an employee’s workload or other issues. Therefore, an employee who is not provided required rest and/or meal periods must be paid an additional hour of pay at the employee’s “regular rate of compensation” for every missed meal or rest period. Until the Ferra decision, this “regular rate of compensation” was simply a worker’s hourly wage, without regard to additional, non-discretionary payments, such as bonuses or shift differentials.
In Ferra, the Court held the opposite, that meal or rest period premiums must be paid at a rate of pay that reflects regular pay + incentives, such as non-discretionary bonuses or shift differentials. Calculating this “regular rate of compensation” for rest and meal period premiums now mirrors the formula previously applied to determine the “regular rate of pay” when calculating overtime premium pay.
If an employee is indeed paid non-discretionary bonus or incentive pay, the calculation of his or her “regular rate of compensation” can initially seem somewhat daunting. Consider an employee who earns $17/hr, but also receives an additional $3/hr shift differential when she works a night shift. In a particular week, she works 60 hours (40 regular hours, 13 overtime hours and 5 double time hours). Of those 60 hours, 30 are paid at the employee’s base rate of $17, and the remaining 30 hours are paid at $20/hr to reflect the $3 night shift differential.
Under the old rule, any rest or meal period premium would be paid at the employee’s base pay, $17. However, under the Ferra holding, an additional calculation must be conducted, which establishes the rest or meal period premium must be paid at the weighted average rate of $18.50. (Total compensation is $1,110, divided by 50 hours, equals the weighted average rate of $18.50; this is her “regular rate of compensation” for that week only.)
Given this development, what should employers do? We recommend the following:
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Many California wage-hour lawsuits include a claim that employees’ wage statements (pay stubs) fail to comply with the law. By way of reminder, each wage statement must contain:
Additionally, the Labor Code also requires the check be drawn on a bank with at least one branch in California, and the check must state the name and address of a business in California where the check can be cashed on demand without a discount
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