Court Finds that Employer Compensation Program Did Not Violate California Law Against Averaging Paid and Non-Paid Time to Meet Minimum Wage Requirements

October 15, 2018Megan Shaked Leave a comment

Under a line of California cases, employees must be separately compensated at least minimum wage for all time worked. These cases have stated that employers may not meet the requirement by showing employees are effectively paid at least minimum wage by averaging the amount an employee receives for paid and non-paid work hours. For example, in Armenta v. Osmose, the court found an employer’s refusal to pay an hourly wage for workers’ time spent driving to job sites or processing paper work violated California minimum wage requirements even though the employer’s higher hourly rate averaged over all hours worked was above the minimum wage. The court concluded the federal model of averaging all hours worked in a work week to calculate an employer’s minimum wage obligation was inappropriate under California law.

A recent decision out of the California Court of Appeal added some nuance to the analysis of minimum wage compliance in an established line of case law. In Certified Tire and Service Centers Wage and Hour Cases, the California Court of Appeal for the Fourth District considered whether the defendant tire and service centers violated California law with its compensation program.

In Certified Tire, employees in a certified wage and hour class action argued the employer violated the applicable minimum wage and rest period requirements with its compensation program, which allowed technicians to earn a higher hourly wage for all hours worked during each pay period based on certain productivity measures.

Under the compensation program, technicians were assigned an hourly wage upon hire that exceeded the legal minimum wage. However, technicians had the opportunity to earn a higher hourly rate under a set formula that rewarded technicians for work billed to a customer as a separate labor charge. The employer applied the formula to determine a technician’s “base hourly rate” for a given pay period. If the base hourly rate exceeded the technician’s regular hourly rate, the technician was paid the higher rate for all time worked during the pay period. If the base hourly rate was less than the technician’s regular rate, the technician was paid the regular rate for all time worked during the pay period.

The employees relied on Armenta and similar cases in arguing its employer secretly paid nothing for work that could not be billed to a customer and through averaging made it look like they were paying at least minimum wage for the “non-billed” time. The employees further argued that since a technician could not increase his or her base hourly wage when working on activities not associated with “billed time” or during rest breaks, such non-billed time was essentially uncompensated.

The court rejected the employees’ argument that the compensation program ran afoul of California minimum wage requirements. Unlike in cases violating the Armenta rule, the employer in Certified Tire did not have to average employee’s hourly rate to show compliance with minimum wage requirements. It directly established such compliance by paying technicians an hourly rate that is above minimum wage for all hours on the clock, including rest breaks. Technicians were required to be clocked in during all work hours, except for their lunch period, and were paid an hourly rate for all hours on the clock. Technicians also took rest breaks as required by law and did not clock out during such breaks.

The court distinguished Armenta and three other cases on which Plaintiff relied because in each case employers failed to compensate employees for certain work time and/or rest breaks. (In Armenta the employer failed to pay for workers’ time spent driving to job sites or processing paper work; in Gonzalez v. Downtown LA Motors, automobile service technicians paid under a piece-rate compensation system were not directly compensated for non-repair tasks; in Bluford v. Safeway Stores, Inc., truck drivers paid under a piece-rate compensation system were not separately compensated for rest periods; in Vaquero v. Stoneledge Furniture LLC, furniture employees paid under a commission-based system were not separately compensated for rest periods.)

Takeaways

Certified Tire is certainly a win for an employer providing an incentive to earn more than the regular hourly rate for all hours worked based on certain productivity measures. The key was the Certified Tire system did not violate the rule against averaging non-paid and paid work hours to comply with minimum wage requirements. Certified Tire is a good reminder to periodically review your company’s pay practices for compliance with California wage and hour law, including the applicable California wage order and the constantly changing body of case law.

Tips, Service Charges, and Automatic Gratuities Continue to Cause Problems for Employers

October 5, 2018Jordan B. Schwartz Leave a comment

Hospitality employers nationwide continue to be hit with class action lawsuits alleging failure to properly pay/distribute tips, as well as failure to correctly characterize service charges and automatic gratuities. These lawsuits have the potential to result in verdicts or settlement amounts more costly than virtually any other employment-related matter. As a result, it is important to periodically review what is or is not permissible under the law is it relates to tips, service charges, and automatic gratuities. shutterstock_waiter

Most employers are familiar with the basic premise that a tip is a voluntary amount a guest leaves for an employee over the amount due for the goods sold or services rendered, while a service charge is an amount agreed-upon in advance by a venue for services provided, often in connection with large pre-planned events. However, service charges are treated differently than tips for tax and other purposes, and automatic gratuities add an extra complicated layer in this analysis. A brief synopsis of the differences of these terms from a legal perspective is set forth below:

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NLRB Seeks to Change Joint Employer Test by Rulemaking

September 18, 2018Kara Maciel Leave a comment

By: Mark Trapp

On September 14, 2018, the National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking (“Notice”). In its Notice, the Board states its belief that the “rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships.” At base, the Notice is an attempt to return the Board to its pre-2015 standard, which the Obama-era NLRB overruled in the controversial Browning-Ferris decision issued that year.

If enacted, the rules would provide a stronger degree of clarity and predictability to business owners and tighten the standard for finding one business to be a joint employer of another employer’s employees. Moreover, by enacting the standard through rulemaking, rather than adjudication, the NLRB decreases the likelihood of the standard being overturned by a later Board. Continue reading →

Hurricanes Headaches: HR FAQs for Employers

September 12, 2018Kara Maciel Leave a comment

It’s hurricane season again in the US! Be prepared!

The Employer Defense Report

Hurricane Florence is approaching the United States, and first and foremost, employers need to make sure their employees, customers, and guests are safe from the storm.

Natural disasters such as hurricanes, earthquakes and tornadoes have posed unique human resource (HR) challenges from wage-hour to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during a difficult time.

Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. Our guidance can be used by employers in navigating through the legal and business implications created by events such as hurricanes. In addition, the information may be applicable to other crises and disasters, such as fires, flu epidemics and workplace violence.

Frequently Asked Questions

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US DOL Issues FMLA Opinion Letters Clarifying No Fault Attendance Policy Rules and…Organ Donation

September 7, 2018September 7, 2018Lindsay A. DiSalvo Leave a comment

By: Aaron R. Gelb

Until last week, the US Department of Labor (the “DOL”) had not issued an Opinion Letter regarding the Family and Medical Leave Act (the “FMLA”) since George W. Bush was packing up and preparing to leave the White House in January 2009. DOL Iterp Letter Image On August 28, 2018, Bryan Jarrett, the Acting Administrator of the DOL’s Wage and Hour Division (the “WHD”) issued two Opinion Letters—one addressing an important consideration facing employers with no-fault attendance policies and another that addresses whether organ donation surgery can qualify as a “serious health condition” under the FMLA for the purposes of taking leave. While the answer to the latter question will likely not surprise anyone who regularly deals with employee requests for leave under the FMLA, the WHD’s opinion regarding whether and how points should be removed from an individual’s record while they are on protected leave does indeed provide much needed clarity on that topic.

But first, a bit of background regarding why the mere issuance of these letters is significant. An opinion letter is an official, written opinion issued by the Wage and Hour Division of the DOL explaining how a certain law applies in specific circumstances described by an employer, employee, or other entity requesting the opinion. The DOL noted in a June 2017 press release that the Wage and Hour Division had been issuing opinion letters for more than 70 years until the Obama administration replaced them with general guidance memoranda in 2010. “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta in the press release. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities,” said Secretary Acosta, explaining that such letters would enable employers to “concentrate on doing what they do best: growing their businesses and creating jobs.”

Turning to the two opinion letters issued on August 28, 2018, we will first address the leave for organ donation, then consider no-fault attendance policy rules. Continue reading →

At the NLRB, Big Labor’s Clock Has Not Yet Struck Midnight

August 30, 2018August 30, 2018Lindsay A. DiSalvo Leave a comment

By: Mark M. Trapp

shutterstock_424794466 As part of an apparent package deal to move through the Senate numerous Trump judicial and other nominees, President Trump on Tuesday re-nominated Democratic member Mark Gaston Pearce for another term on the National Labor Relations Board (“NLRB” or “Board”). Pearce, who has served on the Board since 2010 (when he received a recess appointment from President Obama), saw his latest 5-year term expire at midnight on Monday, only to be renominated within 24 hours.

Pearce served as Chairman of the Agency for nearly six years until President Trump installed his own Chairman in early 2017. His renomination by Trump comes in the face of sharp criticism from the business community and Republicans, upset that in his more than eight years on the NLRB, Pearce was a consistent vote for pro-union outcomes, including the controversial Browning-Ferris joint-employer decision in 2015. An August 17^th editorial in the Wall Street Journal summarized the business community’s complaints against Pearce as follows:

Among other labor hits, Democrats allowed graduate students to unionize; required employers to disclose to unions the names, phone numbers and email addresses of workers; and protected workers who vilify their employers on social media. Mr. Pearce also ruled that employees who had resigned their union membership after their labor contract expired could be dunned for back dues. A D.C. Circuit Court of Appeals panel overruled his decision in June. As chairman, Mr. Pearce snubbed Republican colleagues. GOP member Brian Hayes told a member of Congress in 2011 that Mr. Pearce wasn’t sharing information and public comments on the board’s “quickie election” rule that trampled employers’ due process rights. Mr. Pearce then accused Mr. Hayes of threatening to resign to deny the board a quorum, which prompted an investigation by the board’s Inspector General. Mr. Hayes was exonerated, but Mr. Pearce jammed through the election rule anyway without letting him vote. A federal judge appointed by Mr. Obama blocked the rule because the board lacked a quorum.

If confirmed by the Senate, Pearce will not upset the recent 3-2 Republican majority on the NLRB, which is traditionally staffed by three members of the president’s party and two members of the minority party. But many Republicans and business advocates remember the precedent set during the Obama presidency, which repeatedly left open Republican seats when those members’ terms expired, including once for a full two years. This allowed the Obama-era Board to utilize lengthy 3-1 Democrat advantages to reverse over 4,500 years of NLRB precedent, according to one study.

Now with Trump in office, many business owners and Republicans hope to reverse as many as possible of the Pearce-led changes, a task which would become much easier were Pearce’s seat to remain vacant. Many cases are decided by random three-member panels, and if the Board is 3-1 Republican, no such panel will have a Democratic majority, and cases decided without dissent can move more quickly through the NLRB’s internal processing. In addition, the Democrats have been pushing to force the recusal of Republican members John Ring and William Emanuel on the joint-employer issue. A Pearce confirmation combined with the recusal of these two Republicans would give the Democrats a 2-1 majority on perhaps the biggest issue to many business owners.

It will be interesting to see whether Pearce can make it through Senate confirmation as, for now, it does not appear that the nomination is a “done deal” in that Chamber. In the meantime, the Board will operate with four members. Many employers and business owners large and small would like to see this period extended as long as possible, even if Pearce is ultimately confirmed. If and when Pearce is again confirmed, he would serve until August 27, 2023.

Of course, we here at Conn Maciel will be keeping an eye on this issue of importance. For now, for employers it’s “four-speed ahead!”

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

August 20, 2018August 20, 2018Lindsay A. DiSalvo Leave a comment

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tuesday, Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments. They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s own Labor & Employment and OSHA specialist attorneys. There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.