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Under Wage Order No. 5, a hospital may obtain an affirmative defense to a claim for overtime pay by securing a 2/3ds affirmative vote of the workers in the unit to an alternative work schedule so long as the employer first makes full disclosure of the effects that the alternative work schedule will have and fulfills various other procedural requirements. … Read More

Lab. Code 2802 requires an employer to reimburse employees for expenses they incurred in working from home during the COVID-19 pandemic.  It does not matter that the state's emergency stay-at-home caused the employees to work from home rather than in an office.  Lab. Code 2802 contains no causation requirement or excuse.  Rather the section requires an employer to reimburse employees… Read More

Former nanny sued parent-employers on four wage-and-hour claims and also for defamation based on statements parents made to a friend the parents involved in an attempt to obtain a release of claims by the nanny in exchange for a severance package.  Held, the statements were not protected speech under the Anti-SLAPP statute since litigation was not then threatened or seriously… Read More

Adjunct professors sued USF for failing to give them wage statements that showed hours worked and hourly wage.  After judgment was entered in Gola's favor, the Legislature enacted Lab. Code 515.7 which allows nonprofit universities to avoid certain wage statement requirements if the adjunct professors' wages meet certain criteria.  This decision holds that section 515.7 does not operate retroactively to… Read More

Under the FLSA, an employer need not pay overtime pay to employees who work in a bona fide executive, administrative, or professional capacity.  Dept. of Labor regulations impose three tests for the exemption's applicability, one of which is that the employee must be paid on a "salary basis."  This decision holds that the regulation defining "salary basis" requires that the… Read More

To appeal from a Labor Commissioner award of wages to an employee, the employer must post a bond in the amount the Labor Commissioner awarded.  This decision holds that a car wash company cannot substitute its $150,000 car wash bond for the bond required by section 98.2.  Though for a similar purpose of guaranteeing payment of wages to car wash… Read More

In a case governed by federal law, the arbitrator not the court decides whether the defendant has waived arbitration at least by acts other than participation in litigation.  But under California law, the court decides issues of waiver.  (CCP 1281.2(a).)  In this case, despite a choice of FAA law in the arbitration clause, California law governed this issue because plaintiffs'… Read More

The employer properly computed overtime pay in accordance for pay periods in which it paid plaintiff an hourly wage and a percentage bonus on sales.  The employer used the method prescribed for FSLA overtime (29 CFR 778.210), applying instead the DLSE's Enforcement Manual method (section 49.2.4) would result in an improper overtime on overtime since the bonus already was computed… Read More

Following Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, this decision holds that Labor Code wage and hour provisions do not apply to governmental entities.  Here, the San Diego Convention Center Corp. was a governmental agrency established by the City of San Diego to manage its convention center.  Accordingly, the plaintiff ex-employee could not prevail on meal and… Read More

This decision holds that at least when the employer can and does capture time worked to the exact minute, it cannot justify not paying an employee for every minute worked by relying on a facially neutral policy of rounding time to the nearest 15 minutes.  California law requires payment of employees for all time worked, and disallows any de minimus… Read More

This decision reverses a judgment for the employee in a suit for unpaid overtime wages because of a botched special verdict question regarding the employer's affirmative defense that the employee was an exempt executive under Wage Order No. 5.  The question asked only if the employee spent more than 50% of her time on exempt duties.  The question overemphasized the… Read More

Usually, any agreement to waive the employee's right to sue under PAGA is unenforceable.  But there is an exception for collective bargaining agreements that cover construction workers, provide for wages, hours and working conditions, set forth a grievance and arbitration remedy for Labor Code violations, allow the arbitrator to award all remedies authorized by the Labor Code and clearly waive… Read More

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