Labor & Employment Law Blog

California's Prevailing Wage Law (Labor Code sections 1720-1861) generally requires that persons employed on Public Works be paid "not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed" as determined by the Director of the Department of Industrial Relations."Public works" is broadly defined to include "[c]onstruction, alternation, demolition, installation, or repair work done under contract and paid for in whole or in part of of public funds."  The term "prevailing wages" is not synonymous with average or market wage rates for a particular kind of work in a given local.  "Prevailing wages" are typically union scale wages regardless of whether such wages are typically paid in a given market on non public works projects. For example, the general prevailing wage for a tree trimmer who works above ground is currently $27.49 per hour.  Prevailing wage determinations for various trades can be viewed here. 

On October 9, 2011, Governor Jerry Brown signed into law Assembly Bill 469, sponsored by State Assembly Member Sandre R Swanson (Dem. Oakland), which will be known as the "Wage Theft Prevention Act of 2011." Effective January 1, 2012, the Wage Theft Prevention Act of 2011 will, among other things, subject California employers to new notice and record keeping requirements and to additional penalties for failing to comply with various provisions of the California Labor Code. Some of the coming changes are as follows: 

As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods. This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations. 

As we previously reported here, the consequences of misclassifying a worker as an independent contractor who should have been classified as a non-exempt hourly employee can be substantial. For example, if, because of misclassifying a worker as an independent contractor, the business failed to provide the worker with required meal and rest periods, failed to pay the worker for all hours worked, failed to pay premium pay for overtime hours, and/or failed to provide properly itemized wage statements, the business could become liable for substantial damages for unpaid wages, for various civil penalties, and for attorney's fees. 

Today, the California Department of Fair Employment and Housing issued a press release announcing the California Fair Employment and Housing Commission ordered an airline to pay over $325,000 to and to reinstate a former employee employed as a customer service agent based on the Commission's findings that the airline failed to reasonably accommodate the former employee's disability.

As we previously reported here, failing to comply with the requirements of Labor Code section 226 regarding the information that must be contained on wage statements (aka check stubs) can create significant liability for California employers. In defending numerous wage and hour class action lawsuits, one thing is constant.  Such lawsuits nearly always include allegations that the employer failed to provide employees with wage statements that comply with Labor Code section 226, which specifies nine items of information that must be stated on each wage statement. Such allegations take one or both of the following forms: (1) allegations that the employer did not pay employees for all hours worked and, therefore, failed to comply with the requirement of Labor Code section 226(a)(2) that wage statements show all hours worked and/or (2) allegations that the employer's wage statements fail to comply with the requirements of Labor Code section 226(a) in some other respect, such as failing to include the full name and address of the legal entity that is the employer as required by Labor Code section 226(a)(8).  

The California Labor Code Private Attorneys General Act of 2004 ("PAGA") permits an "aggrieved" current or former employee to seek on behalf of all other "aggrieved" current and former employees very sizable penalties for violations of many provisions of the California Labor Code and for violations of Industrial Welfare Commission Wage Orders. PAGA provides for penalties of $100 per employee per pay period for each initial violation and of $200 per employee per pay period for each subsequent violation. A successful PAGA plaintiff is entitled also to an award of his or her attorney's fees and costs, which can also be sizeable. Plaintiffs bringing class action wage and hour lawsuits now routinely include allegations that their claims fall under PAGA.

Most employers in California are subject to the workplace seating requirements contained in the Industrial Welfare Commission Wage Orders, which regulate wages, hours, and working conditions in specified industries and as to specified occupations. Wage Orders 1-13 and 15 all contain the following seating requirements:

As we previously reported here, on July 12, 2011, the California Court of Appeal held in  Brown v. Ralph's Grocery Company that the decision of the trial court denying enforcement of a class action waiver contained in an arbitration agreement between Ralph's Grocery Company and its employees was not supported by substantial evidence but held, also, that a provision of that arbitration agreement barring employees from pursuing claims under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") is unenforceable because, according to that court, the recent decision of  Supreme Court of the United States in AT& T Mobility v. Concepcion, previously discussed here, does not apply to representative actions brought under PAGA.  Further, the Court of Appeal remanded the case back to the trial court for a determination of whether the arbitration agreement is enforceable except for the PAGA waiver or is unenforceable in its entirety because of the PAGA waiver.  

On July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods. This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.