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California Wage and Hour Law and Litigation

This is your award-winning guide to a constantly developing area of law. Use it as a handbook for counseling your clients about compliance with complex wage and hour rules or as a primer for litigating a wage and hour case whether you represent the employer or the employee.

“...not only provides attorneys with a compendium of recent case law and statutory references, but also contains numerous practice tips that can be relied upon in litigating and settling wage and hour matters. ”
Mark S. Rudy, Rudy, Exelrod, Zieff & Lowe, LLP, San Francisco

This is your award-winning guide to a constantly developing area of law. Use it as a handbook for counseling your clients about compliance with complex wage and hour rules or as a primer for litigating a wage and hour case whether you represent the employer or the employee.

  • New chapter devoted exclusively to PAGA claims
  • Covers both state and federal law
  • Explains meal and rest break rules, a frequent source of litigation and liability
  • Helps avoid misclassification problems
  • Offers advice for workplace policies and best practices
  • Explains state and federal agency proceedings
  • Provides in-depth treatment of the mediation process
  • Assists with litigation strategy whether you represent the plaintiff or defendant
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“...not only provides attorneys with a compendium of recent case law and statutory references, but also contains numerous practice tips that can be relied upon in litigating and settling wage and hour matters. ”
Mark S. Rudy, Rudy, Exelrod, Zieff & Lowe, LLP, San Francisco

This is your award-winning guide to a constantly developing area of law. Use it as a handbook for counseling your clients about compliance with complex wage and hour rules or as a primer for litigating a wage and hour case whether you represent the employer or the employee.

  • New chapter devoted exclusively to PAGA claims
  • Covers both state and federal law
  • Explains meal and rest break rules, a frequent source of litigation and liability
  • Helps avoid misclassification problems
  • Offers advice for workplace policies and best practices
  • Explains state and federal agency proceedings
  • Provides in-depth treatment of the mediation process
  • Assists with litigation strategy whether you represent the plaintiff or defendant

1

Overview of California Wage and Hour Law

Michael D. Singer

  • I. SCOPE OF CHAPTER 1.1
  • II. OVERVIEW OF APPLICABLE LAW
    • A. Regulatory Scheme 1.2
    • B. Importance of Employment Relationship 1.3
      • 1. Right of Control 1.4
      • 2. Other Indicia of Employment Relationship 1.5
      • 3. Risks of Misclassification 1.6
    • C. IWC Wage Orders 1.7
      • 1. Table: Wage Orders by Industry or Occupation 1.8
      • 2. Enforcement; DLSE Manual 1.9
      • 3. Public Employers Generally Exempt 1.10
    • D. Unfair Competition Law 1.11
    • E. Public Policy
      • 1. Policies Governing Wages and Working Conditions in General 1.12
      • 2. Policies Governing Minimum Wages, Overtime, and Payment of Wages 1.13
      • 3. California Public Policy Supporting Wage and Hour Class Actions 1.14
  • III. WAGE AND HOUR LAWS AND REGULATIONS
    • A. Minimum Wages and Contract Wages
      • 1. Minimum Wages 1.15
        • a. Exemptions From Minimum Wage 1.16
        • b. Learners 1.17
        • c. Minors 1.18
      • 2. Contract Wages 1.19
    • B. Split-Shift Premiums 1.20
    • C. Reporting Time Pay 1.21
    • D. Living Wage 1.22
    • E. Maximum Hours and Overtime Pay
      • 1. Workday and Workweek 1.23
      • 2. Calculating Regular Pay Rates 1.24
      • 3. Alternative Workweek Schedules 1.25
      • 4. Employees Covered by Collective Bargaining Agreements 1.26
      • 5. Overtime Exemptions 1.27
    • F. Compensatory Time Off in Lieu of Overtime 1.28
    • G. Standby or On-Call Time 1.29
    • H. Prevailing Wage Requirements for Public Works Construction 1.30
      • 1. Recordkeeping 1.31
      • 2. Exceptions 1.32
    • I. Uniforms 1.33
    • J. Tools and Equipment 1.34
    • K. Rest and Meal Period Requirements 1.35
      • 1. Rest Periods 1.36
      • 2. Meal Periods 1.37
    • L. Recordkeeping Requirements 1.38
      • 1. Payroll Statements 1.39
      • 2. Inspection Rights 1.40
      • 3. Penalties 1.41
    • M. Vacation Time 1.42
    • N. Sick Days, Kin Care, Family and Medical Leave, and Paid Family Leave
      • 1. Sick Leave 1.43
      • 2. Kin Care 1.44
      • 3. Family and Medical Leave 1.45
      • 4. Paid Family Leave 1.46
    • O. Timing of Wage Payments; Penalties 1.47
    • P. Tip Pooling 1.48
    • Q. Gender-Based Equal Pay Protections 1.49
    • R. California Fair Pay Act 1.49A
    • S. Mass Layoff Notice 1.50
    • T. Indemnity for Expenditures on Uniforms, Tools, and Other Work-Related Expenses 1.51
    • U. Wage Deductions
      • 1. General Rule 1.52
      • 2. Cash Shortage, Breakage, and Equipment Loss 1.53
    • V. Enforcement
      • 1. Private Attorneys General Act 1.54
      • 2. Attorney Fees, Interest, and Costs in Wage Claims 1.55
      • 3. Penalties 1.56
      • 4. Statutes of Limitations 1.57

2

Overview of Federal Law

Aashish Y. Desai

  • I. SCOPE OF CHAPTER 2.1
  • II. FEDERAL LAWS GOVERNING WAGES AND HOURS 2.2
  • III. THE FAIR LABOR STANDARDS ACT (FLSA)
    • A. Coverage Under the FLSA 2.3
    • B. Interaction of State and Federal Law 2.4
    • C. Areas Regulated by the FLSA 2.5
    • D. Areas Not Regulated by the FLSA
      • 1. Rest Periods 2.6
      • 2. Meal Periods 2.7
    • E. Employer-Employee Relationship Required
      • 1. FLSA Definition of "Employee"
        • a. Broadly Defined 2.8
        • b. Independent Worker versus Employee
          • (1) Economic Reality Test 2.9
          • (2) Examples 2.10
      • 2. FLSA Definition of "Employer"
        • a. Broadly Defined 2.11
        • b. Joint Employers 2.12
        • c. Successor Liability 2.13
    • F. "In Commerce" Requirement 2.14
      • 1. Employee Test 2.15
        • a. "Engaged in Commerce" 2.16
        • b. "Engaged in the Production of Goods for Commerce" 2.17
        • c. Employees of Not-for-Profit Organizations 2.18
      • 2. Enterprise Test 2.19
        • a. Family Business Exception 2.20
        • b. Public Entities 2.21
        • c. Indian Tribes 2.22
    • G. Exemptions Under the FLSA 2.23
    • H. Recordkeeping
      • 1. Overview 2.24
      • 2. Items Required 2.25
      • 3. Retention Periods 2.26
      • 4. No Private Right of Action 2.27
      • 5. California Rights May Differ 2.28
      • 6. Burden on Employer 2.29
  • IV. CLASS CERTIFICATION OF FLSA CLAIMS
    • A. Opt-in Requirement 2.30
    • B. Notice to "Similarly Situated" Parties 2.31
    • C. Two-Tiered Procedure for Certification 2.32
  • V. ATTORNEY FEES AND COSTS
    • A. Generally 2.33
    • B. Fees Are Mandatory 2.34
    • C. Defendants Are Not Entitled to Fees 2.35
    • D. Calculation of Fees 2.36
      • 1. Establish the Lodestar 2.37
      • 2. Multiplier 2.38
  • VI. OTHER LITIGATION ISSUES
    • A. Waiver of FLSA Claims 2.39
    • B. California Law May Differ 2.40
    • C. No Second Opt-in Requirement 2.41
    • D. Parent and Subsidiary Corporations 2.42
    • E. Individual Corporate Officers 2.43
    • F. Representative Testimony 2.44
    • G. Hybrid Actions Using State and Federal Law 2.45
  • VII. COMPUTING OVERTIME DAMAGES
    • A. General Principles 2.46
    • B. Determining the Workweek 2.47
    • C. Computing the Regular Rate
      • 1. In General 2.48
      • 2. Fluctuating Workweek 2.49
    • D. Bonuses 2.50
    • E. Benefit Plans 2.51
    • F. Belo Plans
      • 1. Under Federal Law 2.52
      • 2. California Does Not Permit Belo Plans 2.53

3

The Employment Relationship

Bill Hoerger

  • I. INTRODUCTION 3.1
  • II. SCOPE OF CHAPTER 3.2
  • III. WAGE LIABILITY UNDER CALIFORNIA LAW
    • A. California Statutory Employment Relationship
      • 1. Statutory and Regulatory Framework 3.3
      • 2. "Employer" Liability Under the Labor Code 3.4
        • a. Employment Relationship Applicable to Private-Party Causes of Action 3.5
        • b. Actions by DLSE May Invoke Wage-Order Definition or Common Law Relationship 3.6
    • B. Risks of Misclassification 3.7
    • C. Pleading and Proof 3.7A
    • D. "Employer" Liability Under Common Law Principles 3.8
      • 1. "Status" and "Joint Employer" Cases 3.9
      • 2. Historical Development 3.10
      • 3. California's Common Law Approach
        • a. Evaluate Right to Control 3.11
        • b. Consider Other Factors in Addition to Control 3.12
        • c. Consider History and Purposes of Statute 3.13
        • d. Primary Versus Secondary Factors 3.14
        • e. Applying the Secondary Factors
          • (1) Engaged in a Distinct Occupation or Business 3.15
          • (2) Kind of Occupation 3.16
          • (3) Skill Required 3.17
          • (4) Tools and Place of Work 3.18
          • (5) Length of Time Employed 3.19
          • (6) Method of Payment 3.20
          • (7) Part of Regular Business of Employer 3.21
          • (8) Parties' Intention and Belief 3.22
          • (9) Whether Principal Is in Business 3.23
        • f. Restatement Third: Distinguishing Agency From Employment 3.24
        • g. Summary of Common Law Approach 3.25
    • E. Martinez v Combs 3.26
    • F. Statutory Liability of Nonemployers to Workers for Wages and Penalties 3.27
    • G. Contractual Liability for Nonemployers 3.28
    • H. Alter Ego Liability
      • 1. Nature of Doctrine 3.29
      • 2. Application 3.30
      • 3. Procedures
        • a. Prior to Conclusion of Trial 3.31
        • b. Postjudgment 3.32
      • 4. Litigation Assessment and Pleading Considerations 3.33
  • IV. WAGE LIABILITY UNDER THE FLSA 3.34
    • A. Employee or Independent Contractor: "Economic Reality" Test 3.35
    • B. Examples 3.36
    • C. Joint Employers 3.37
    • D. Successor Liability 3.38

4

Compensable Work Time and Regulation of Work Time

R. Brian Dixon

  • I. SCOPE OF CHAPTER 4.1
  • II. GENERAL CONCEPTS OF WORK TIME
    • A. Relationship of Federal to State and Local Law 4.2
      • 1. Federal Law 4.3
      • 2. State Law
        • a. Defining Compensable Work Time 4.4
        • b. Work Time Exclusions 4.5
    • B. Paying for Work Time With Piece Rates and Commissions 4.5A
    • C. Work Time as "Suffered or Permitted" 4.6
  • III. CALCULATING COMPENSABLE WORK TIME 4.6A
    • A. The De Minimis Rule 4.7
      • 1. De Minimis Donning and Doffing Time 4.8
      • 2. Aggregating Activities 4.9
      • 3. De Minimus Rule Under State Law 4.9A
    • B. Residential Employees 4.9B
  • IV. WORK TIME BY ACTIVITY 4.10
    • A. Principal, Preliminary, and Postliminary Activities 4.11
    • B. Clothes-Changing Time 4.12
    • C. Meal Periods 4.13
      • 1. Leaving the Premises 4.14
      • 2. Variation by Agreement 4.15
    • D. Rest and Recovery Periods 4.16
    • E. Adjusting Grievances 4.17
    • F. Meeting and Training Time 4.18
    • G. Medical Attention 4.19
    • H. Civic and Charitable Work 4.20
    • I. Waiting Time 4.21
      • 1. Recesses 4.22
      • 2. Standby Time 4.23
    • J. Travel Time 4.24
      • 1. Commute Time 4.25
      • 2. Out-of-Town Travel 4.26
      • 3. Travel Under California Law 4.27
    • K. Sleep Time 4.28
  • V. REGULATION OF WORK HOURS 4.29
    • A. Meal Period Intervals 4.30
      • 1. Meal Period Variations 4.31
      • 2. Conflict Between Wage Order Meal Period Provisions and Lab C §512 4.32
      • 3. Limited Obligation to Provide Meal Periods 4.33
      • 4. Premium for Missed Meal Periods 4.34
    • B. Rest Periods 4.35
    • C. Lactation Breaks 4.35A
    • D. Recovery Periods 4.35B
    • E. Reporting Time Pay 4.36
      • 1. Mandatory Meetings 4.37
      • 2. Reporting Pay Excused 4.38
    • F. Split-Shift Premium 4.39
    • G. Maximum Hours 4.40
    • H. Day of Rest 4.41

5

Payment of Wages

Jeffrey P. Fuchsman

Eric W. Mueller

Richard S. Rosenberg

Matthew T. Wakefield

  • I. OVERVIEW 5.1
    • A. Basic Federal Statutes 5.2
    • B. California Regulatory Scheme: Wage Orders 5.3
    • C. Information to Be Provided to Employees On Hire 5.3A
  • II. MANNER OF PAYMENT
    • A. Time of Payment 5.4
    • B. Method of Payment; Payroll Debit Cards 5.5
    • C. Wage Statements 5.6
      • 1. Employee Damages 5.7
      • 2. Civil and Criminal Penalties 5.8
  • III. CALCULATION OF WAGES
    • A. Hourly, Salary, and Piece-Rate Compensation 5.9
    • B. Pay for Reporting to Work 5.10
    • C. Payment of Wages on Termination of Employment 5.11
      • 1. Rules Applicable to Specific Industries 5.12
      • 2. Penalties 5.13
    • D. Commissions and Bonuses 5.14
    • E. Minimum Wage 5.15
      • 1. Minors and Learners 5.16
      • 2. Crediting of Tips Toward Minimum Wage 5.17
    • F. Meal and Lodging Credits 5.18
    • G. Volunteers and Interns 5.19
  • IV. EFFECT OF BENEFITS ON WAGE CALCULATIONS
    • A. Gratuities
      • 1. Employees' Right to Gratuities 5.20
      • 2. Tip-Pooling Arrangements 5.21
    • B. Vacation 5.22
    • C. Sabbatical Leave Distinguished 5.22A
    • D. Sick Pay 5.23
      • 1. Employees Covered 5.23A
      • 2. Request for and Use of Sick Leave 5.23B
      • 3. Employer Response to Request 5.23C
      • 4. Accrual, Carryover, and Cap 5.23D
      • 5. Termination of Employment 5.23E
      • 6. Recordkeeping and Notice Requirements 5.23F
      • 7. Existing Policies 5.23G
      • 8. Enforcement and Penalties 5.23H
      • 9. Preemption and Scope Issues 5.23I
    • E. Severance Pay 5.24
  • V. ADJUSTMENTS TO WAGES
    • A. Shortages, Breakage, or Losses 5.25
    • B. Adjustments, Chargebacks, or Deductions 5.26
    • C. Uniforms, Tools, and Equipment 5.27
    • D. Indemnification 5.28

6

Regular Rate and Overtime

Jeffrey P. Fuchsman

Eric W. Mueller

Richard S. Rosenberg

Matthew T. Wakefield

  • I. OVERTIME
    • A. California Law 6.1
    • B. Federal Law—FLSA 6.2
    • C. Exemptions 6.3
    • D. California Wage Orders: Different Overtime Rules for Different Industries 6.4
    • E. Phase-In Overtime for Agricultural Workers Act of 2016 6.4A
    • F. Workweek and Workday
      • 1. FLSA 6.5
      • 2. California Law 6.6
    • G. Alternative Workweek Schedules
      • 1. Permissible Arrangements 6.7
      • 2. Implementation
        • a. Proposal for Alternative Workweek Schedule 6.8
        • b. Ratification of Alternative Workweek Schedule 6.9
        • c. Repeal of Alternative Workweek Schedule 6.10
        • d. Employee Rights 6.11
      • 3. Health Care Industry 6.12
  • II. REGULAR RATE OF PAY
    • A. Hourly and Salaried Employees 6.13
    • B. Fluctuating Workweek
      • 1. Under the FLSA 6.14
      • 2. Not Permitted Under California Law 6.15
      • 3. Example Illustrating Differences Between Federal and State Approach 6.16
    • C. Pieceworkers 6.17
    • D. Commissions and Bonuses 6.18
    • E. Different Rates of Pay for Employee Doing Different Types of Work
      • 1. Under California Law 6.19
      • 2. Under the FLSA 6.20
    • F. Noncash Wages 6.21
  • III. EXCLUSIONS FROM THE REGULAR RATE
    • A. Gifts and Special Occasion Bonuses 6.22
    • B. Payment for Hours Not Worked or Expenses 6.23
    • C. Discretionary Bonuses and Payments to Certain Benefit Plans 6.24
    • D. Other Benefit Plan Contributions 6.25
    • E. Stock Options and Other Equity Devices 6.26
    • F. Premium Pay for Overtime 6.27
  • IV. EXAMPLES OF OVERTIME CALCULATIONS
    • A. Hourly Employees 6.28
      • 1. Seventh-Day Premium 6.29
      • 2. Pieceworkers 6.30
      • 3. Commissions and Bonus 6.31
    • B. Salaried Employees 6.32
  • V. OTHER METHODS OF COMPENSATING OVERTIME
    • A. Time Off 6.33
    • B. Make-Up Time Exception in California 6.34

7

Exemptions From Minimum Wage and Overtime Requirements

  • I. CALIFORNIA EXEMPTIONS
    • A. Status Is Determined by Salary and Duties 7.1
      • 1. Salary 7.2
        • a. Effect of Additional Compensation Paid for Extra Hours Worked 7.3
        • b. Deductions 7.4
      • 2. Duties 7.5
    • B. Executive Exemption 7.6
    • C. Administrative Exemption 7.7
    • D. Professional Exemption 7.8
    • E. Exempt Treatment of Other Particular Occupations
      • 1. Computer-Related Professionals 7.9
      • 2. Outside Salespersons 7.10
      • 3. Commissioned Salespersons 7.11
      • 4. Other Exemptions 7.12
  • II. FEDERAL EXEMPTIONS 7.13
    • A. Executive Exemption 7.14
      • 1. Salary Test 7.15
      • 2. Primary Duty 7.16
      • 3. Supervisory Position 7.17
      • 4. Authority to Hire or Fire 7.18
    • B. Administrative Exemption 7.19
      • 1. Salary Test 7.20
      • 2. Primary Duty 7.21
      • 3. Exercise of Discretion and Independent Judgment 7.22
    • C. Professional Exemption
      • 1. Learned Professional 7.23
        • a. Salary Test 7.24
        • b. Primary Duty 7.25
      • 2. Creative Professional 7.26
    • D. Exempt Treatment of Other Particular Occupations
      • 1. Computer-Related Professionals 7.27
      • 2. Outside Salespersons 7.28
      • 3. Certain Agricultural Workers 7.29
    • E. Miscellaneous Exemptions
      • 1. From Both Minimum Wage and Overtime Requirements 7.30
      • 2. From Overtime Requirements Only 7.31

8

Workplace Policies and Best Practices

Marlene Muraco

  • I. THE IMPORTANCE OF WRITTEN POLICIES 8.1
  • II. KEY CONSIDERATIONS IN DRAFTING WAGE AND HOUR POLICIES 8.2
  • III. KEY POLICIES 8.3
    • A. Overtime 8.4
    • B. Timekeeping 8.5
    • C. Defining "Workweek" and "Workday" 8.6
    • D. Make-Up Time 8.7
    • E. Holiday Pay and Floating Holidays 8.8
    • F. Vacation 8.9
    • G. Meal Periods 8.10
    • H. Rest Periods 8.11
    • I. Employee Classifications 8.12
    • J. Confidentiality of Pay Practices 8.13
    • K. Payment of Wages 8.14
    • L. Payment of Final Wages 8.15
    • M. Commissions 8.16
    • N. Deductions From Wages
      • 1. Restrictions 8.17
      • 2. Form: Sample Salary Deduction Policy Approved by U.S. Department of Labor for FLSA Purposes Only 8.18
      • 3. California Law 8.19
    • O. Expense Reimbursement 8.20
    • P. Time Worked 8.21
    • Q. Bonuses 8.22
  • IV. TABLE: LEGAL HOLIDAYS 8.23
  • V. SAMPLE POLICIES
    • A. Form: Sample Business Expense Reimbursement Policy 8.24
    • B. Form: Sample Meal and Rest Break Policy 8.25
    • C. Form: Acknowledgment of Receipt of Meal Period and Rest Break Policy 8.26

9

Workplace Posting and Recordkeeping Requirements

  • I. INTRODUCTION 9.1
  • II. CHECKLIST: NOTICE-POSTING REQUIREMENTS 9.2
    • A. California Law
      • 1. Notice of California Minimum Wage 9.3
      • 2. Payday Notice 9.4
      • 3. Security for Payroll: Certain Occupations 9.5
      • 4. Earned Income Tax Credit Notification 9.6
      • 5. Withholding Allowance Certificate Notice to Employees 9.7
      • 6. Wage Orders 9.8
      • 7. State Disability Insurance and Unemployment Insurance 9.9
      • 8. California Family Rights Act 9.10
      • 9. State Paid Sick Leave Notice 9.10A
      • 10. Pregnancy Leave 9.11
      • 11. Family Temporary Disability Leave 9.12
      • 12. Time Off to Vote 9.13
      • 13. Organizing Agricultural Workers 9.14
      • 14. Farm Labor Contract Rates 9.14A
    • B. Local Ordinances 9.15
    • C. Federal Law
      • 1. Fair Labor Standards Act Minimum Wage Notices 9.16
      • 2. Family and Medical Leave Act 9.17
      • 3. Military Leave 9.18
      • 4. Davis-Bacon Act 9.19
      • 5. Walsh-Healey Public Contracts Act 9.20
      • 6. McNamara-O'Hara Service Contract Act 9.21
      • 7. Migrant and Seasonal Agricultural Worker Protection Act 9.22
      • 8. Federal Longshore and Harbor Workers' Compensation Act 9.23
      • 9. Posting of ERISA Plan "Notice to Interested Parties" Required by IRS 9.24
      • 10. Notice of Intention to Hire Foreign Nationals 9.25
  • III. RECORDKEEPING REQUIREMENTS 9.26
    • A. California Law
      • 1. Employee Wage Records 9.27
      • 2. Public Works Contractors 9.28
      • 3. Records for Monitoring Wage Discrimination on Basis of Gender 9.29
      • 4. Records for Unemployment Insurance Purposes 9.30
      • 5. Gratuities 9.31
      • 6. Employment of Minors 9.32
      • 7. Wage Order Requirements 9.33
      • 8. Deductions From Cash Payment of Wages 9.34
      • 9. California Income Tax Records 9.35
      • 10. CFRA Requirements 9.36
      • 11. Spoliation of Evidence 9.37
      • 12. Employee Damages 9.38
      • 13. Civil and Criminal Penalties 9.39
    • B. Federal Law
      • 1. Fair Labor Standards Act 9.40
      • 2. ADEA 9.41
      • 3. Labor-Management Reporting and Disclosure Act 9.42
      • 4. FMLA 9.43
      • 5. Tax Records
        • a. Records Relating to Taxable Income 9.44
        • b. Income Tax Withholding Records 9.45
        • c. Federal Unemployment Tax Records 9.46
        • d. FICA Contributions Records 9.47
      • 6. Supply Contractor Records (Walsh-Healey Public Contracts Act) 9.48
      • 7. Service Contractor Records (McNamara-O'Hara Service Contract Act) 9.49
      • 8. Contractor Records Under Davis-Bacon Act 9.50
      • 9. Records on Migrant and Seasonal Agricultural Workers 9.51
      • 10. Records Relating to ERISA Benefits 9.52
    • C. Chart: Recommended Retention of Personnel Records 9.53
    • D. Chart: Summary of Recordkeeping and Statutory Retention Requirements 9.54

10

Employment of Minors

Laura Fleming

  • I. OVERVIEW OF APPLICABLE LAW
    • A. California Laws 10.1
    • B. Federal Law 10.2
  • II. EMPLOYMENT OF MINORS UNDER CALIFORNIA LAW
    • A. Who Is Covered by California's Child Labor Provisions? 10.3
    • B. Who Is Exempt From the Child Labor Provisions of California Law? 10.4
    • C. What Jobs May a Minor Employee Perform Under California Law?
      • 1. California Occupational Restrictions on Minors Under Age 12
        • a. Permitted Occupations for Minors Under Age 12 10.5
        • b. Prohibited Occupations for Minors Under Age 12 10.6
      • 2. California Occupational Restrictions on Minors Ages 12 to 13
        • a. Permitted Occupations for Minors Ages 12 and Older 10.7
        • b. Prohibited Occupations for Minors Under Age 14 10.8
      • 3. California Occupational Restrictions on Minors Ages 14 to 15
        • a. Permitted Occupations for Minors Ages 14 and Older 10.9
        • b. Prohibited Occupations for Minors Under Age 16 10.10
        • c. Apprentice and Student-Learner Exceptions 10.11
      • 4. California Occupational Restrictions on Minors Ages 16 to 17
        • a. Permitted Occupations for Minors Ages 16 and Older 10.12
        • b. Prohibited Occupations for Minors Under Age 18 10.13
    • D. What Hours May a Minor Employee Work Under California Law?
      • 1. Limits on Working Hours for Minors Ages 13 and Younger 10.14
      • 2. Limits on Working Hours for Minors Ages 14 to 15 10.15
      • 3. Limits on Working Hours for Minors Ages 16 to 17 10.16
    • E. How Are California's Child Labor Provisions Enforced?
      • 1. Mandatory Work Permits 10.17
      • 2. Penalties for Violations 10.18
      • 3. Child Labor Protection Act of 2014 10.18A
    • F. Helpful Resources Regarding Employment of Minors Under California Law 10.19
  • III. EMPLOYMENT OF MINORS UNDER FEDERAL LAW (FLSA)
    • A. Who Is Covered by the Child Labor Provisions of the FLSA? 10.20
    • B. Who Is Exempt From the Child Labor Provisions of the FLSA? 10.21
    • C. What Jobs May a Minor Employee Perform Under the FLSA? 10.22
      • 1. Permitted Occupations for Minors Ages 13 and Younger 10.23
      • 2. Occupational Restrictions on Minors Ages 14 and 15
        • a. Permitted Occupations for Minors Ages 14 and Older 10.24
        • b. Prohibited Occupations for Minors Under Age 16 10.25
        • c. Training Program Exemption 10.26
      • 3. Occupational Restrictions on Minors Ages 16 to 17
        • a. Permitted Occupations for Minors Ages 16 and Older 10.27
        • b. Prohibited Occupations for Minors Under Age 18 10.28
        • c. Apprentice and Student-Learner Exemptions 10.29
    • D. What Hours May a Minor Employee Work Under the FLSA?
      • 1. Limits on Working Hours for Minors Ages 14 to 15 10.30
      • 2. Limits on Working Hours for Minors Ages 16 to 17 10.31
    • E. How Are the Child Labor Provisions of the FLSA Enforced?
      • 1. Nonmandatory Age Certificates 10.32
      • 2. Penalties for Violations 10.33
    • F. Helpful Resources Regarding Employment of Minors Under the FLSA 10.34
  • IV. SUMMARY CHART OF CALIFORNIA AND FEDERAL CHILD LABOR LAWS 10.35

11

DLSE Enforcement of Wage and Hour Laws

Anne Hipshman

  • I. INTRODUCTION
    • A. Structure of Division of Labor Standards Enforcement (DLSE) 11.1
    • B. Governing Law 11.2
    • C. DLSE's Enforcement of Wage and Hour Laws 11.3
  • II. WAGE CLAIM ADJUDICATION
    • A. Wage Claim Versus Civil Action 11.4
    • B. Types of Wage Claims Adjudicated 11.5
    • C. Wage Claim Procedures—In General
      • 1. Filing Claim 11.6
      • 2. Potential DLSE Actions on Claim 11.7
      • 3. Berman Hearing Procedure 11.8
        • a. DLSE May Undertake Preliminary Investigation 11.9
        • b. Informal Conference 11.10
        • c. Administrative Complaint and Answer 11.11
        • d. No Discovery or Prehearing Motions 11.12
        • e. Conduct of Hearing
          • (1) Proceedings Not Governed by APA 11.13
          • (2) Rules Regarding Admission of Evidence 11.14
          • (3) When Employer Fails to Answer or Appear 11.15
        • f. Effect of Arbitration Agreement 11.15A
      • 4. Order, Decision, or Award 11.16
      • 5. Enforcement of Judgment 11.16A
      • 6. Appeal to Superior Court 11.17
        • a. Posting an Undertaking 11.18
        • b. Procedure for Filing Appeal 11.19
        • c. Costs and Attorney Fees on Appeal 11.20
      • 7. Employer's Willful Failure to Pay 11.20A
    • D. Wage Claims in the Garment Industry 11.20B
      • 1. Joint Liability 11.20C
      • 2. Initiating Claim; DLSE Response 11.20D
      • 3. DLSE Investigation and Assessment 11.20E
      • 4. Meet-and-Confer Conference 11.20F
      • 5. Hearing 11.20G
      • 6. Order, Decision, or Award 11.20H
      • 7. Recovery of Costs and Attorney Fees 11.20I
      • 8. Appeal to Superior Court 11.20J
  • III. INVESTIGATIONS OF EMPLOYERS
    • A. Bureau of Field Enforcement (BOFE) 11.21
      • 1. Special Enforcement Plans 11.22
      • 2. Scope of BOFE's Investigative Authority 11.23
      • 3. Prevailing Wage Enforcement 11.23A
      • 4. Investigation Procedures 11.24
    • B. Employer Audits 11.25
    • C. Issuance of Citations
      • 1. Violations of Wage and Hour Laws 11.26
      • 2. Appeal of Citation 11.27
  • IV. RETALIATION COMPLAINT INVESTIGATIONS (LAB C §98.7) 11.27A
  • V. ENFORCEMENT OF PREVAILING WAGE LAWS FOR PUBLIC WORKS 11.27B
  • VI. JOINT TASK FORCES 11.28
  • VII. LICENSING AND REGISTRATION OF EMPLOYERS 11.29

12

DOL Enforcement of Wage and Hour Laws

  • I. INTRODUCTION
    • A. DOL Jurisdiction 12.1
    • B. Organization of Wage and Hour Division 12.2
  • II. INVESTIGATIONS
    • A. How Prompted 12.3
    • B. Conciliation 12.4
    • C. Entry Into Workplace and Initial Conference 12.5
    • D. Investigation 12.6
      • 1. Inspection of Records 12.7
      • 2. Interviews of Employees 12.8
      • 3. Scope in Time 12.9
    • E. Final Conference and Disposition 12.10
  • III. CIVIL ACTIONS
    • A. Remedies Available in Suits by the DOL
      • 1. Generally 12.11
      • 2. Injunctive Relief in "Hot Goods" Cases 12.12
      • 3. Penalties 12.13
    • B. Private Suits 12.14
      • 1. Retaliation by Employer Prohibited 12.15
      • 2. Burden of Proof 12.16
      • 3. Employer's Reliance on WHD Letter Ruling 12.17
      • 4. Personal Liability of Officers 12.18
      • 5. Successor Liability 12.19
      • 6. Business and Professions Code §17200 12.20
      • 7. Union Employees May Bypass Grievance and Arbitration Procedure 12.21
    • C. Statute of Limitations 12.22
    • D. Contempt 12.23
    • E. Criminal Actions 12.24
    • F. Settlements and Releases of Claims Under Federal Law 12.25

13

Mediating Wage and Hour Disputes

Todd F. Jackson

Kirsten G. Scott

Meryl C. Maneker

Peter S. Rukin

  • I. INTRODUCTION
    • A. Importance of Mediation for Wage and Hour Cases 13.1
    • B. What Is Mediation? 13.2
    • C. Advantages of Mediation 13.3
    • D. When Mediation May Be Inappropriate 13.4
  • II. DETERMINING WHEN TO MEDIATE
    • A. Voluntary Mediation 13.5
      • 1. Prefiling Mediation in Single-Plaintiff Cases 13.6
      • 2. Precertification Mediation in Class Actions 13.7
      • 3. Postcertification Mediation in Class Actions 13.8
    • B. Mandatory Mediation 13.9
  • III. PREPARING FOR THE MEDIATION
    • A. Importance of Thorough Preparation 13.10
    • B. Gathering Information
      • 1. Obtaining Any Needed Discovery 13.11
      • 2. Consider Conducting Informal Discovery 13.12
      • 3. Completing Any Necessary Factual Investigation 13.13
    • C. Analyzing Strengths and Weaknesses of Case 13.14
      • 1. Assessing Potential Damages to Determine Settlement Value 13.15
      • 2. Researching Your Opponent and Judge 13.16
      • 3. Knowing Your Mediator 13.17
    • D. Preparing Client for Mediation 13.18
      • 1. Managing Expectations About Process 13.19
        • a. Explaining Mediator's Role 13.20
        • b. Explaining Counsel's Role 13.21
        • c. Explaining Client's Role 13.22
      • 2. Managing Expectations About Value of Case 13.23
    • E. Preparing the Mediation Brief
      • 1. Contents 13.24
      • 2. Should You Exchange Briefs With Opposing Party? 13.25
  • IV. THE MEDIATION PROCESS
    • A. Selecting the Mediator 13.26
    • B. Determining Who Should Attend 13.27
    • C. Paying for Mediation 13.28
    • D. Mediation Confidentiality
      • 1. General Rules 13.29
      • 2. Limitations
        • a. Settlement Discussions Outside Formal Mediation 13.30
        • b. Underlying Factual Information 13.31
        • c. Removal to Federal Court 13.32
        • d. Court-Ordered Review of Information 13.32A
      • 3. Confidentiality of Settlement Agreement 13.33
    • E. Mediation Procedures
      • 1. Joint Opening Session 13.34
      • 2. Separate Caucuses 13.35
      • 3. Settlement Agreement
        • a. Need for Written Document 13.36
        • b. Terms to Include
          • (1) Single-Plaintiff Cases 13.37
          • (2) Class Actions 13.38
        • c. Special Considerations in Settlement of Cases Under FLSA 13.39

13A

PAGA Claims

Michael D. Singer

  • I. ENACTMENT AND PURPOSE 13A.1
  • II. VIOLATIONS GIVING RISE TO PAGA CLAIMS
    • A. Violations Identified in Lab C §2699.5 13A.2
    • B. Health and Safety Violations 13A.3
    • C. Other Labor Code and Wage Order Violations 13A.4
  • III. PREREQUISITE FOR FILING SUIT: NOTICE TO EMPLOYER AND THE LWDA 13A.5
    • A. Contents of Notice 13A.6
    • B. LWDA Response 13A.7
    • C. Employer's Opportunity to Cure 13A.8
  • IV. PAGA ACTIONS
    • A. Parties
      • 1. Plaintiffs 13A.9
      • 2. Representative as Fiduciary 13A.10
      • 3. Defendants 13A.11
    • B. Complaint 13A.12
    • C. Discovery 13A.13
    • D. Remedies 13A.14
      • 1. Remedies for Subsequent Violations 13A.15
      • 2. Labor Code §558 Issues 13A.16
      • 3. Wage Statement Claims 13A.17
      • 4. Meal Period Claims 13A.18
      • 5. Attorney Fees and Costs 13A.19
    • E. Settlement 13A.20
    • F. PAGA Claims and Arbitration 13A.21
    • G. Removal and Federal Jurisdiction Under CAFA 13A.22
    • H. Class Action Issues
      • 1. Meeting Class Certification Requirements 13A.23
      • 2. Tolling of Statute of Limitations for Individual Claims 13A.24
      • 3. Enhancements for Lead Plaintiffs 13A.25
      • 4. Commonality and Manageability Issues 13A.26
      • 5. Trial Plan 13A.27
      • 6. Appeal 13A.28
    • I. Res Judicata 13A.29

14

Litigating Wage and Hour Cases: Plaintiffs' Perspective

Peter S. Rukin

Jessica Riggin

  • I. INTRODUCTION 14.1
  • II. INITIAL CASE INTAKE
    • A. Determining Whether Wage and Hour Issue Exists 14.1A
    • B. Information Gathering
      • 1. From the Client
        • a. Conducting the Initial Interview 14.2
        • b. Gathering Documents in Client's Possession 14.3
      • 2. From Putative Class Members 14.4
      • 3. From Third-Party Witnesses 14.5
      • 4. From Other Sources
        • a. Information Available Online 14.6
        • b. Public Records Act Requests 14.7
    • C. Assessing the Case 14.8
      • 1. The Merits of the Legal Claims
        • a. Determining Which Laws May Apply 14.9
        • b. Performing Damage Calculation 14.10
      • 2. The Client as Litigant and Class Representative
        • a. Job Performance Generally Unimportant 14.11
        • b. Other Areas of Inquiry 14.12
      • 3. Identifying the Proper Defendant
        • a. Who Is an Employer? 14.13
        • b. Is Employer a Solvent and Viable Defendant? 14.13A
      • 4. Is Case Appropriate for Class Certification? 14.14
    • D. Considerations Regarding Arbitration Agreements 14.15
    • E. Representation Agreement 14.15A
  • III. PREPARING THE COMPLAINT
    • A. General Rules of Pleading in Wage and Hour Cases 14.15B
    • B. Allegations Specific to Class and Collective Actions 14.15C
  • IV. PRECERTIFICATION MOTION PRACTICE AND ROADBLOCKS
    • A. Forum and Case Management Issues 14.16
      • 1. State Court
        • a. Related Cases
          • (1) Determining When Cases Are Related 14.17
          • (2) Duty to Provide Notice; Contents 14.18
        • b. Consolidation 14.19
        • c. Coordination 14.20
          • (1) Petition for Coordination 14.21
          • (2) Relevant Factors 14.22
          • (3) Procedures Following Coordination 14.23
      • 2. Federal Court
        • a. Related Cases 14.24
        • b. Multidistrict Litigation 14.25
    • B. Surviving Early Challenges to Maintenance of Class Action 14.26
    • C. Precertification Summary Judgment Motions and Other Early Merits Challenges 14.27
    • D. Overlapping Cases and Settlements
      • 1. When There Has Been a Prior Class Certification Ruling 14.28
      • 2. When There Has Been a Prior Settlement 14.29
  • V. DISCOVERY 14.30
    • A. Informal Investigations
      • 1. Timing 14.31
      • 2. Information That Can Be Gathered Informally 14.32
      • 3. Prelitigation Demands 14.33
    • B. Formal Discovery
      • 1. Functions 14.34
      • 2. Creating Discovery Plan 14.35
      • 3. Discovery of Class Member Information 14.36
  • VI. CLASS CERTIFICATION 14.37
    • A. Timing of Motion 14.38
    • B. Requirements 14.39
      • 1. Numerosity 14.40
      • 2. Commonality 14.41
      • 3. Typicality 14.42
      • 4. Adequacy 14.43
        • a. Adequacy of Class Counsel 14.44
        • b. Adequacy of Class Representatives 14.45
        • c. "Conflicts" Not Usually Ground to Deny Certification 14.46
    • C. Certification of FLSA Collective Actions 14.46A
    • D. Other Certification Issues
      • 1. The Class Definition 14.47
        • a. When Class Differs in Scope From Class Alleged in Complaint 14.48
        • b. Subclasses 14.49
      • 2. Hybrid Rule 23/FLSA Actions 14.50
      • 3. Claims for Civil Penalties Under PAGA 14.51
    • E. Checklist 14.52
  • VII. SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
    • A. When Use May Be Appropriate 14.53
    • B. Rule Against One-Way Intervention 14.54
  • VIII. MEDIATION 14.55
  • IX. SETTLEMENT
    • A. Preparing the Settlement Agreement 14.56
    • B. Potential Settlement Issues
      • 1. Waiver and Release 14.57
      • 2. Tax Allocation of Settlement Payment 14.58
      • 3. Special Considerations in Class Actions
        • a. Nonreversionary Versus Reversionary Settlements 14.59
        • b. Cy Près Beneficiaries 14.60
        • c. Attorney Fees 14.61
        • d. Named Plaintiffs Enhancement Payments 14.62
    • C. Settlement Procedures
      • 1. State Court Class Actions 14.63
      • 2. Federal Class Actions and FLSA Collective Actions 14.64
      • 3. Single-Plaintiff Cases and Representative Actions Under PAGA 14.65
  • X. SELECTED ISSUES IN WAGE AND HOUR TRIALS 14.66
    • A. Bench Trial or Jury Trial? 14.67
    • B. Representative Evidence 14.68
    • C. Bifurcation
      • 1. Liability and Damages 14.69
      • 2. Common Versus Individual Issues 14.70
      • 3. Pilot/Bellwether Cases 14.71

15

Litigating Wage and Hour Cases: Defendants' Perspective

Meryl C. Maneker

  • I. INTRODUCTION
    • A. Emergence and Growth of Wage and Hour Litigation 15.1
    • B. Wage and Hour Cases Can Mean Significant Potential Exposure for Employers 15.2
    • C. Familiarity With Class Action Law and Procedure Is Essential 15.3
  • II. INITIAL CONSIDERATIONS ON RECEIPT OF THE COMPLAINT 15.4
    • A. Undertaking Early Factual Investigation 15.5
      • 1. What Information to Gather 15.6
      • 2. Interviewing Knowledgeable Employees 15.7
    • B. Undertaking Early Assessment of Plaintiffs' Claims 15.8
    • C. Initial Corrective Action 15.9
  • III. RESPONDING TO THE COMPLAINT 15.10
    • A. Most Commonly Asserted Claims 15.11
    • B. Removal to Federal Court 15.12
      • 1. Grounds for Removal
        • a. Diversity Jurisdiction 15.13
        • b. Federal Question Jurisdiction 15.14
        • c. Class Action Fairness Act of 2005 (CAFA) 15.15
          • (1) Requirements for Removal 15.16
          • (2) Consent of All Defendants Not Required 15.17
          • (3) One-Year Rule Inapplicable to CAFA Cases 15.18
      • 2. Strategy Considerations Regarding Removal 15.19
    • C. Corralling Competing Cases: Coordination, Consolidation, and Related Cases 15.20
    • D. Challenging Class Allegations 15.21
    • E. Challenging the Scope of the Case
      • 1. Prior Overlapping Cases and Settlements 15.22
        • a. When There Has Been a Prior Settlement 15.23
        • b. When There Has Been a Prior Class Certification Ruling 15.24
      • 2. Determining the Proper Defendant
        • a. Nonemployer Entities 15.25
        • b. Individuals 15.26
      • 3. Challenging Particular Causes of Action or Claims for Relief
        • a. Motion to Strike Request for Punitive Damages 15.27
        • b. Exhaustion of Administrative Remedies Under PAGA 15.28
        • c. Statute of Limitations Issues 15.29
      • 4. No Private Right of Action
        • a. Under the Labor Code 15.30
        • b. Under IWC Wage Orders 15.31
    • F. Defense Considerations Related to Arbitration Agreements
      • 1. Arbitration of Wage and Hour Cases 15.32
      • 2. Class Action Waivers
        • a. Enforceability 15.33
        • b. Severability of Class Action Waiver 15.34
        • c. Class Action Waivers Outside Arbitration [Deleted] 15.35
    • G. Answering the Complaint 15.36
  • IV. DISCOVERY
    • A. Gathering Information in Defendant's Possession 15.37
    • B. Considering Bifurcating Discovery on Class Certification 15.38
    • C. Discovery From Plaintiffs
      • 1. Importance of Written Discovery 15.39
      • 2. Investigation of Named Plaintiffs 15.40
      • 3. Deposing the Named Plaintiff 15.41
    • D. Third-Party Discovery
      • 1. Plaintiffs' Employment History 15.42
      • 2. Discovery From Putative Class Members 15.43
    • E. Responding to Discovery
      • 1. Request for Class List 15.44
        • a. Use of Opt-out Notice Protects Putative Class Members' Privacy Interests 15.45
          • (1) Opt-out Notice May Not Be Required 15.46
          • (2) Defendant May Provide Its Own Notice 15.47
          • (3) Continued Viability of Opt-in Procedure Unclear 15.48
          • (4) Alternative Method 15.49
        • b. When Court Intervention Is Required
          • (1) Balance Danger of Abuse of Process Against Rights of Parties 15.50
          • (2) Protective Orders 15.51
        • c. What Contact Information Must Be Disclosed 15.52
        • d. Requests for Financial Information 15.53
        • e. Content of Notice 15.54
        • f. Cost of Notice 15.55
      • 2. Depositions of Persons Most Knowledgeable 15.56
      • 3. Surveys 15.57
      • 4. Requests for Time Cards, Audits, and Other Forms of Data 15.58
    • F. Precertification Communication With Putative Class Members
      • 1. General Rule 15.59
        • a. Contact by Plaintiff's Counsel 15.60
        • b. Contact by Defense Counsel 15.61
        • c. Discovery of Putative Class Member Communications With Counsel 15.62
      • 2. Represented Parties and Restrictions of Rule 2–100 15.63
      • 3. Declarations From Putative Class Members 15.64
      • 4. Precertification Settlement With Putative Class Members 15.65
    • G. Protective Orders 15.66
  • V. OPPOSING CLASS CERTIFICATION 15.67
    • A. Timing of Class Certification Motions
      • 1. State Law 15.68
      • 2. Federal Law 15.69
    • B. Papers in Opposition to Motion 15.70
    • C. Attacking Plaintiffs' Showing in Support of Certification
      • 1. Requirements for Class Certification 15.71
        • a. Ascertainability and Numerosity Not Usually at Issue 15.72
        • b. Contesting Commonality 15.73
          • (1) Exemption Claims 15.74
          • (2) Meal Break and Rest Period Claims 15.75
          • (3) Independent Contractor Claims 15.76
          • (4) Off-the-Clock Claims 15.77
        • c. Contesting Typicality 15.78
        • d. Contesting Adequacy
          • (1) Of Counsel 15.79
          • (2) Of Class Representative 15.80
        • e. Contesting Superiority 15.81
          • (1) Administrative Alternatives 15.82
          • (2) Substantial Benefits to Litigants and Court 15.83
      • 2. Specific Evidence to Marshal in Opposition 15.84
        • a. Declarations of Putative Class Members 15.85
        • b. Studies, Surveys, and Analyses of Data 15.86
        • c. Expert Testimony 15.87
        • d. Evidence of Company Policy and Practices 15.88
    • D. Class Certification in Special Cases 15.89
      • 1. Class Certification Required for Unfair Competition Law (UCL) Claims 15.90
      • 2. Class Certification Not Required for Claims Under PAGA 15.91
    • E. Appellate Review and the "Death Knell" Doctrine 15.92
    • F. Affirmative Motions to Decertify Class 15.93
    • G. Denial of Class Certification in Prior Action May Serve as Collateral Estoppel 15.94
    • H. Class Certification Order and Class Notice 15.95
    • I. Postcertification Motions to Decertify 15.96
  • VI. USE OF MOTIONS FOR SUMMARY JUDGMENT
    • A. Timing in Relation to Class Certification Motion
      • 1. Precertification
        • a. Plaintiffs Limited by Rule Against "One-Way Intervention" 15.97
        • b. By Defendant 15.98
      • 2. Postcertification
        • a. By Plaintiffs 15.99
        • b. By Defendant
          • (1) Reason to Bring Motion 15.100
          • (2) Issues or Claims Amenable to Summary Judgment or Summary Adjudication 15.101
    • B. Types of Evidence to Submit in Support of Summary Judgment Motion 15.102
      • 1. Expert Witnesses and Related Evidence
        • a. Studies 15.103
        • b. Surveys 15.104
        • c. Statistical Evidence 15.105
        • d. Expert Testimony 15.106
      • 2. Percipient Witness Evidence
        • a. Percipient Witness Testimony 15.107
        • b. Putative Class Member Testimony 15.108
        • c. Testimony From Defendant's "Persons Most Knowledgeable" 15.109
      • 3. Documentary Evidence
        • a. Company Policies 15.110
        • b. Job Descriptions 15.111
        • c. Performance Evaluations 15.112
        • d. Disciplinary Records 15.113
  • VII. MEDIATION 15.114
  • VIII. SETTLEMENT OF WAGE AND HOUR CASES 15.115
    • A. Procedural Overview in Class Action Context 15.116
    • B. Preparing the Settlement Agreement: Key Terms
      • 1. Settlement Class 15.117
      • 2. Settlement Amount 15.118
      • 3. Payments to Settlement Class
        • a. Calculation of Amount 15.119
        • b. Reversionary Versus Common Fund (Fluid Recovery) Settlements 15.120
          • (1) Civil Procedure Code Section 384(b) Does Not Preclude Claims-Made Settlements 15.121
          • (2) Unclaimed Funds May Be Residue Under Code of Civil Procedure §384(b) 15.122
        • c. Characterization of Payments 15.123
      • 4. Attorney Fees and Costs 15.124
      • 5. Enhancement Payments to Class Representatives 15.125
      • 6. Claims Administration and Costs 15.126
      • 7. Employee Withholding and Payroll Taxes 15.127
      • 8. Release of Claims 15.128
        • a. Unclear Whether PAGA Claims Are Released With Underlying Labor Code Claims 15.129
        • b. Paying Portion of Settlement to LWDA 15.130
        • c. Labor Code §206.5 15.131
        • d. Date Through Which Claims Released 15.132
      • 9. Nonmonetary Relief 15.133
      • 10. Bust-Up Provision 15.134
      • 11. Notice to Class and Submission of Claims 15.135
    • C. Providing Notice of Settlement 15.136
      • 1. Notices 15.137
      • 2. Claim Forms 15.138
      • 3. No Duty of Class Counsel to Contact Class Members 15.139
    • D. Objections to Settlements 15.140
    • E. Standard for Approval of Class Action Settlement
      • 1. Settlement Must Be Fair, Adequate, and Reasonable 15.141
        • a. Factors to Determine Fairness of Settlement 15.142
        • b. When There May Be Presumption of Fairness 15.143
      • 2. Precertification Settlements
        • a. Subject to Higher Level of Scrutiny 15.144
        • b. Lower Standard for Certifying Settlement Class 15.145
  • IX. SELECTED ISSUES RELATED TO TRIALS OF WAGE AND HOUR CLASS ACTIONS
    • A. Whether Trial Is to Court or Jury 15.146
    • B. Use of Representative Evidence 15.147
  • X. DEFENDING SINGLE-PLAINTIFF WAGE AND HOUR CASES 15.148
    • A. Employee Has Choice of Filing in Court or Before Labor Commissioner 15.149
    • B. Cases on Appeal From Labor Commissioner Administrative Hearing 15.150
      • 1. Timing of Appeal 15.151
      • 2. Decision Is Subject to De Novo Review on Appeal 15.152
      • 3. Costs and Attorney Fees Are Available to Nonappealing Prevailing Party 15.153
      • 4. Effect of Failure to Appeal Labor Commissioner Decision 15.154

Selected Developments

January 2017 Update

Effective January 1, 2016, company owners, directors, officers, or managing agents may be held individually liable as the employer for wage and hour violations. Lab C §558.1. See §1.3.

Labor Code §220(a) exempts the State of California from compliance with certain provisions governing the timing and location of wage payment. The state remains responsible for waiting time penalties under Lab C §203 for wages owed at separation to employees who are terminated, resign, or retire. See McLean v State (2016) 1 C5th 615. See §1.10.

Effective January 1, 2017, Lab C §925 prohibits employers from requiring employees who primarily reside and work in California, as a condition of employment, to agree to contract provisions that apply another state's law, require adjudication of labor disputes in another state, or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. See §1.12.

The current minimum wage for employers with more than 25 employees is $10.50 per hour, effective January 1, 2017. Lab C §1182.12; Wage Order No. MW-2014 (8 Cal Code Regs §11000). Beginning January 1, 2017, California began staging incremental increases to the minimum wage, to reach $15.00 per hour by January 1, 2022 (companies with more than 25 employees) and January 1, 2023 (companies with 25 employees or less). See §§1.15, 5.15.

The California Supreme Court has granted review on the issue of whether California applies the federal de minimis standard (permitting employers to disregard a few seconds or minutes of work beyond scheduled working hours) to wage claims. Troester v Starbucks Corp. (review granted Aug. 17, 2016, S234969) 2016 Cal Lexis 6801 (question of state law certified to the court by the U.S. Court of Appeals for the Ninth Circuit under Cal Rules of Ct 8.548). See §1.19.

The California Supreme Court granted review in Alvarado v Dart Container Corp. of Cal. (review granted May 11, 2016, S232607; superseded opinion at 243 CA4th 1200), to address the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus. See §1.24.

Failure to pay premium wages for meal and rest period violations constitutes a predicate for restitution claims under the Unfair Competition Law (UCL) (Bus & P C §§17200–17210). Safeway, Inc. v Superior Court (2015) 238 CA4th 1138. See §1.37.

Attorney's fees recoverable under Lab C §203 for waiting time penalty claims may not be premised on Lab C §226.7 violations. Ling v P.F. Chang's China Bistro, Inc. (2016) 245 CA4th 1242, 1261. See §1.37.

Federal district courts are split on whether premiums owed at separation from employment give rise to claims for waiting time penalties under Lab C §203. See, most recently, Parson v Golden State FC, LLC (ND Cal, May 2, 2016, No. 16-cv-00405-JST) 2016 US Dist Lexis 58299 (permitting Lab C §203 claims). But see Jones v Spherion Staffing LLC (CD Cal, Aug. 7, 2012, No. LA CV11-06462 JAK (JCx)) 2012 US Dist Lexis 112396 (denying Lab C §203 claims for Lab C §226.7 violations). See §1.37.

District courts have declined to find interest recoverable for claims under Lab C §226.7. See, e.g., Van v Language Line Servs. (ND Cal, June 6, 2016, No. 14-CV-03791-LHK) 2016 US Dist Lexis 73510 ("because this claim is not an ‘action brought for the nonpayment of wages'"). See §1.37.

An initial 12-month waiting period before vacation benefits accrue, and satisfaction of minimum hours of service requirements do not violate the anti-forfeiture protections of Lab C §227.3. Tschudy v J.C. Penney Corp. (SD Cal, Mar. 30, 2016, No. 11cv1011 JM (KSC)) 2016 US Dist Lexis 44221. See §1.42.

When employers make salary decisions during the hiring process based on prospective employees' prior salaries or require women to disclose their prior salaries during salary negotiations, women often end up at a sharp disadvantage, especially if they're returning to the workplace following extended time off. The result: Historical disparities in pay between men and women get perpetuated. An amendment to the California Fair Pay Act (Lab C §1197.5) addresses this issue by not allowing employers to use prior salary, by itself, to justify a disparity in compensation. Lab C §1197.5(a)(3), discussed in §1.49A.

The California Legislature has taken the next logical step toward the goal of equal pay for equal work with another amendment to the Fair Pay Act. Effective January 1, 2017, the Act provides that an employer must not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. Lab C §1197.5(b). See §1.49A.

Labor Code §2802 precludes an employer from requiring employees to reimburse mandated training costs. In re Acknowledgment Cases (2015) 239 CA4th 1498. Optional educational expenses are subject to repayment. USS-Posco Indus. v Case (2016) 244 CA4th 197. See §1.51.

The Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab C §§2698–2699.5) can be used to enforce penalties for suitable seating requirement violations. In these actions, the California Supreme Court has ruled that an objective inquiry, involving a "totality of the circumstances" approach, should be used, considering tasks together based on their location and the feasibility of allowing seated work, as well as an employer's reasonable expectations and the physical layout of the workspace. Kilby v CVS Pharmacy, Inc. (2016) 63 C4th 1. See §1.54.

The Department of Labor has changed the overtime exemption under the Fair Labor Standards Act of 1938 (FLSA). The regulations change both the salary and duties test. The changes were effective on December 1, 2016. The initial increase to the salary level changed from $455 to $913 per week. Future automatic updates will occur every 3 years, beginning on January 1, 2020. 29 CFR pt 541. See §2.2.

The Department of Labor has released a new guidance on joint employment under federal law: DOL Wage and Hour Division Administrator's Interpretation No. 2016–1, Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act (Jan. 20, 2016). See §§3.37, 15.25.

Whether a particular compensation plan is appropriately characterized as a piece-rate pay plan is an issue of fact. Where employees were given a specified amount of time to perform a task but could adjust that time if the time actually spent varied from the specified amount, the employees were not paid on a piece-rate basis. Vasquez v First Student, Inc. (CD Cal, Mar. 12, 2015, No. 2:14-CV-06760-ODW (Ex)) 2015 US Dist Lexis 30631. See §4.5.

Effective January 1, 2016, the judicial limitations on the activities for which a piece rate can provide compensation were codified in Lab C §226.2. Section 226.2 requires compensation for rest and recovery periods and for nonproductive time that is separate from piece-rate compensation. See §4.5.

A failure to provide separate compensation for nonproductive time may be a violation of Lab C §221. Villalpando v Exel Direct Inc. (ND Cal, Sept. 3, 2015, No. 12-cv-04137-JCS) 2015 US Dist Lexis 118065. See §4.5A.

In Corbin v Time Warner Entertainment–Advance/Newhouse Partnership (9th Cir 2016) 821 F3d 1069, the court found that cumulative over- and underpayments from rounding resulted in a de minimis claim that was not cognizable. See §4.7.

The California Supreme Court will determine the extent to which the federal de minimis rule applies under California's wage payment laws. Troester v Starbucks Corp. (review granted Aug. 17, 2016, S234969) 2016 Cal Lexis 6801 (question of state law certified to the California Supreme Court by the U.S. Court of Appeals for the Ninth Circuit under Cal Rules of Ct 8.548). See §4.9A.

In Balistreri v Menlo Park Fire Protection Dist. (9th Cir 2015) 800 F3d 1094, the court held that firefighters who were free to take gear home were not entitled to compensation for gathering and transporting that gear to work, as those activities were not "intrinsic" to the primary activity of fighting fires. See §4.11.

In USS-Posco Indus. v Case (2016) 244 CA4th 197, the court held that a voluntary training, which was one of several ways to satisfy a training prerequisite for a job and which did not include any employer-specific training, was not "required" training such that the obligation to reimburse expenses under Lab C §2802 was triggered. See §4.18.

California considers the compensability of standby time under somewhat different terms than those used under the Fair Labor Standards Act (FLSA) (29 USC §§201–219), but many of the same criteria are used to determine whether standby time is work time. See Mendiola v CPS Sec. Solutions, Inc. (2015) 60 C4th 833, 841. See §4.23.

Although there is no legal requirement that a waiver of a meal period be in writing, employers should obtain those waivers in writing. Otherwise, an employer may not be able to meet its burden of showing that meal periods, which by employees' time entries appear to have been missed, were, in fact, waived. Safeway, Inc. v Superior Court (2015) 238 CA4th 1138. See §§4.30, 4.33.

An employer's failure to apportion commissions between an employee who wishes to take a meal and his or her substitute, may result in an impermissible incentive to skip meal periods. Klune v Ashley Furniture Indus., Inc. (CD Cal, Apr. 3, 2015, No. CV 14-3986 PA (FFMx)) 2015 US Dist Lexis 44855. See §4.33.

The exact nature of the premiums for missed meal and rest periods has not been fully determined. The 1 hour of pay was deemed to be a wage and not a penalty for purposes of the statute of limitations. Murphy v Kenneth Cole Prods., Inc. (2007) 40 C4th 1094. The premiums are not, however, wages for purposes of determining prevailing-party attorney fee awards. Kirby v Immoos Fire Protection, Inc., supra. See also Parson v Golden State FC, LLC (ND Cal, May 2, 2016, No. 16-cv-00405-JST) 2016 US Dist Lexis 58299 (concluding that meal period premiums are wages for purpose of waiting time penalties, acknowledging split of authority regarding issue). See §4.34.

In Saechao v McCormick & Schmick Restaurant Corp. (ND Cal, Mar. 15, 2016, No. C 15-00815 WHA) 2016 US Dist Lexis 33409, the court noted the division of authority as to whether an employee voluntarily scheduling a split shift would trigger a split-shift premium. See §4.39.

In Mendoza v Nordstrom, Inc. (review granted Apr. 29, 2015, S224611) 2015 Cal Lexis 2399, three questions of state law were certified to the California Supreme Court by the U.S. Court of Appeals for the Ninth Circuit under Cal Rules of Ct 8.548:

1. Is the day of rest obligation calculated based on workweeks or periods of 7 consecutive days?

2. Is the day of rest obligation avoided when an employee works fewer than 6 hours on any day of the applicable week?

3. What does it mean to "cause" an employee to work more than 6 days in 7?

See §4.41.

Beginning January 1, 2017, employers with ten or more employees must electronically submit employment tax returns, wage reports, and payroll tax deposits to the Employment Development Department (EDD). All remaining employers will be subject to this requirement beginning January 1, 2018. Un Ins C §1112(a). See §5.6.

Assembly Bill 2535, effective January 1, 2017, amends Lab C §226 and clarifies that total hours worked do not need to be reported for those employees who are exempt from minimum wage and overtime and whose pay is not determined by hours worked, in addition to exempt salaried employees (e.g., outside sales employees). See Lab C §226(j). See §5.6.

As noted above, in Parson v Golden State FC, LLC (ND Cal, May 2, 2016, No. 16-cv-00405-JST) 2016 US Dist Lexis 58299, the court reviewed the relevant case law and concluded that payments required by Lab C §226.7 should be considered wages; accordingly, plaintiffs may bring derivative claims under Lab C §204. The court found there is no authority to suggest that wages awarded under Lab C §226.7 should be treated any differently than other wages earned by employees. See §5.11.

Missed meal and rest break premiums are not "wages" covered by Lab C §203. Consequently, waiting time penalties cannot be awarded based on an employer's alleged failure to pay missed break premiums. Ling v P.F. Chang's China Bistro, Inc. (2016) 245 CA4th 1242. See §5.13.

A nondiscretionary bonus based on quarterly sales goals may be paid quarterly, provided the regular hourly wage payments exceed the minimum wage and are paid each pay period. DLSE Opinion Letter 2016.03.23. See §5.14.

Many cities and counties throughout California have enacted local living wage ordinances or have currently pending legislation. As of the date of this update, those jurisdictions include: Albany, Berkeley, Emeryville, El Cerrito, Fairfax, Hayward, Los Altos, Los Angeles, Long Beach, Malibu, Marin, Mountain View, Oakland, Oxnard, Palo Alto, Pasadena, Petaluma, Richmond, Sacramento, Santa Barbara, Santa Clara, Santa Cruz, San Diego, San Leandro, San Mateo, Santa Monica, San Francisco, San Jose, Sonoma, Sunnyvale, and Ventura. See §5.15.

Meal and lodging credits have been updated. See §5.18.

In Oregon Restaurant & Lodging Ass'n v Solis (D Or 2014) 948 F Supp 2d 1217, an Oregon district court ruled that the Department of Labor's (DOL's) amendments to 29 CFR §§531.52, 531.54, and 531.59, which prohibit employers that do not take a tip credit from contracting with their tipped employees to establish a tip pool that includes nontipped employees, are inconsistent with the FLSA. The court relied on Cumbie v Woody Woo, Inc. (9th Cir 2010) 596 F3d 577, in which the Ninth Circuit held that a restaurant did not violate the FLSA by requiring wait staff to participate in a tip-pooling arrangement in which the kitchen staff received a portion of the tips, when the employer did not take a tip credit. However, the Ninth Circuit in Oregon Restauraunt & Lodging Ass'n v Perez (9th Cir 2016) 816 F3d 1080, reversed and remanded this decision, holding that the DOL's 2011 amendments prohibiting employers from including nontipped employees in a tip pool regardless of whether the employer takes a tip credit against the minimum wage, were consistent with the FLSA's language, legislative history, and purpose. The Ninth Circuit stated that it was not altering the Cumbie ruling; instead, the court found that Cumbie did not foreclose the DOL's ability to regulate tip-pooling practices of employers who do not take a tip credit. See §5.21.

Courts continue to uphold an employer's right to set the basic parameters of vacation benefits. In Tschudy v J.C. Penney Corp. (SD Cal, Mar. 30, 2016, No. 11cv1011 JM (KSC)) 2016 US Dist Lexis 44221, the court held that the employer's vacation policy, which provided for an initial 12-month waiting period before vacation benefits began to accrue or vest, and required satisfaction of a minimum number of hours of service, did not violate Lab C §227.3. The vacation policy specifically provided that employees become eligible and receive their first vacation deposit "on the first day of the month following 12 months of employment if you average 25 or more hours during the first 48 weeks of employment." See §5.22.

Beginning July 1, 2018, employees who provide in-home supportive services will be entitled to paid sick leave. Lab C §246(a), (e). See §5.23A.

In USS-Posco Indus. v Case (2016) 244 CA4th 197, the court found an agreement that the employee would reimburse the employer for a voluntary 3-year employer-sponsored, optional training program if the employee quit within 30 months of completing the program was enforceable and did not implicate wage statutes. As in City of Oakland v Hassey (2008) 163 CA4th 1477, the court held that the reimbursement agreement was not an invalid restraint on employment under Bus & P C §16600. See §5.25.

In Bains v Department of Indus. Relations (2016) 244 CA4th 1120, the court distinguished between agricultural workers engaged in the process of harvesting fruit from the trees and those drying the fruit in fixed sheds next to the orchard, and held that those engaged in drying properly came under Wage Order No. 13–2001 (8 Cal Code Regs §11140(2)(D)), and could receive more generous overtime rates than the harvesters. See §6.4.

Farmworkers in the nation's largest agricultural state can finally look forward to the same overtime protections most other hourly workers enjoy. The Phase-In Overtime for Agricultural Workers Act of 2016 (Lab C §§857–864), which will be phased in over 4 years beginning in 2019, is the first of its kind in the nation and will end the 80-year-old practice of applying separate labor rules to agricultural workers. See new §6.4A.

In Alvarado v Dart Container Corp. (2016) 243 CA4th 1200, the court held that California law does not provide a method of calculating overtime rates of pay when the employer pays its employees an hourly rate plus a flat sum bonus. Accordingly, an employer may use the formula set out in 29 CFR §778.209(a). The plaintiff argued that Marin v Costco Wholesale Corp. (2008) 169 CA4th 804 provides the appropriate method to calculate overtime on bonuses. The California Supreme Court has granted a petition for review in Alvarado, and will examine what is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus. See §6.18.

In Balestrieri v Menlo Park Fire Protection Dist. (9th Cir 2015) 800 F3d 1094, 1103, the Ninth Circuit held that payments made to firefighters under a buyback program in a combined sick leave and vacation leave policy should not be included in calculating their regular rate of pay. See §6.23.

The discussion of DLSE's enforcement of prevailing wage laws for public works has been updated to include a new 30-day requirement for releasing escrowed funds added by AB 326 (Stats 2016, ch 345). See §11.27B.

A new chapter 13A, authored by Michael D. Singer, has been added to the book. The subject of the chapter is PAGA claims. This chapter includes the most recent amendments to PAGA by SB 836 (Stats 2016, ch 31), effective June 27, 2016. The following are some highlights of those amendments, which apply prospectively to all pending PAGA cases, as well as new filings:

  • All new PAGA claim notices must be filed online, with a copy sent by certified mail to the employer;

  • All employer cure notices or other responses to a PAGA claim must be filed online, with a copy sent by certified mail to the aggrieved employee or aggrieved employee's representative;

  • A filing fee of $75 is required for a new PAGA claim notice and any initial employer response (cure or other response) to a new PAGA claim notice;

  • The time for the Labor and Workforce Development Agency (LWDA) to review a notice under Lab C §2699.3(a) has been extended from 30 to 60 days;

  • When filing a new PAGA lawsuit in court, a filed-stamped copy of the complaint must be provided to the LWDA (applies only to cases in which the initial PAGA claim notice was filed on or after July 1, 2016);

  • Any settlement of a PAGA action must be approved by the court, whether or not the settlement includes an award of PAGA penalties. A copy of a proposed settlement must be provided to the LWDA at the same time that it is submitted to the court; and

  • A copy of the court's judgment and any other order that awards or denies PAGA penalties must be provided to the LWDA.

In connection with legislation proposed in 2016, the governor's office noted that the LWDA had received 29,474 PAGA notices from 2010 through 2014. In the first 10 years of PAGA's operation, employers paid some $31,000,000 in penalties to the LWDA. See §13A.1.

In Williams v Superior Court (2015) 237 CA4th 642, the court held that a representative PAGA claim cannot be split into an arbitrable individual claim and a nonarbitrable representative claim. See §13A.9.

In Monaghan v Telecom Italia Sparkle of N. Am. (9th Cir 2016) 647 Fed Appx 763, 770, the Ninth Circuit, noting a lack of California appellate authority, found that PAGA applies only to employee suits brought in a representative capacity. See §13A.9.

An individual officer, director, or owner of a business may be personally liable for a PAGA claim. Sarmiento v Wells Fargo Bank, N.A. (CD Cal, Apr. 17, 2015, No. CV 15-01181-RGK (PLA)) US Dist Lexis 51159. See §13A.11.

One court has found PAGA penalties available in addition to meal and rest period premiums under Lab C §226.7. In re Taco Bell Wage and Hour Actions (ED Cal, Apr. 8, 2016, No. 1:07-cv-01314-SAB) 2016 US Dist Lexis 48557. See §13A.14.

Arbitration clauses purporting to require employees to waive their right to prosecute PAGA representative claims are contrary to public policy and unenforceable. Sakkab v Luxottica Retail N. Am., Inc. (9th Cir 2015) 803 F3d 425. See §13A.21.

Effective January 1, 2016, the California Labor Code provides that any natural person acting on behalf of an employer who is an officer, director, owner, or managing agent of the employer may be held liable "as the employer" for violations of Lab C §§203, 226, 226.7, 1193.6, 1194, and 2802. This amendment substantially closes the loophole left open by Reynolds v Bement (2005) 36 C4th 1075, and ensures that employees have a means of holding members of an employer's control group liable for wage and hour violations. See §14.13.

There has been a recent seismic shift in the Ninth Circuit's view of class action waivers. For years, the vast majority of courts disagreed with the holding of D.R. Horton Inc. & Cuda (2012) 357 NLRB No. 184, and rejected arguments that class action waivers in arbitration agreements violate employees' right to engage in concerted activity under §§7 and 8 of the National Labor Relations Act (NLRA). However, in August 2016, the Ninth Circuit expressly adopted the National Labor Relations Board's reasoning, and held that class action waivers are unlawful and unenforceable under the NLRA. Morris v Ernst & Young, LLP (9th Cir 2016) 834 F3d 975. Although it did not mention Morris, the U.S. District Court for the Central District of California came to the same conclusion in Totten v Kellogg Brown & Root, LLC (CD Cal 2016) 152 F Supp 3d 1243, 1258. See §14.15.

Federal Rule of Civil Procedure 23(b)(3) demands a showing that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Following Wal-Mart Stores, Inc. v Dukes (2011) 564 US ___, 131 S Ct 2541, the commonality requirement has not proved to be a significant impediment to certification of employment claims. See Perez v Wells Fargo & Co. (ND Cal, Aug. 8, 2016, No. 14-cv-0989-PJH) 2016 US Dist Lexis 104385, *16 (finding commonality; "In the Ninth Circuit, Rule 23(a)'s commonality requirement is ‘limited'"). See §14.41.

In opposing class certification, some employers have argued that class treatment is not the superior means for adjudicating wage and hour claims because the California Division of Labor Standards Enforcement provides a more convenient and efficient forum for the resolution of Labor Code violations. The California Supreme Court has definitively rejected this argument. Gentry v Superior Court (2007) 42 C4th 443, 464, overruled on other grounds in Iskanian v CLS Transp. Los Angeles, LLC (2014) 59 C4th 348, 360. See also Tapia v Zale Delaware Inc. (SD Cal, Apr. 6, 2016, No. 13-CV-1565-BAS (PCL)) 2016 US Dist Lexis 48046, *28 (finding that although a DLSE administrative hearing is a quick procedure, the class mechanism offers advantages to workers asserting wage and hour claims). See §14.41.

Although the Ninth Circuit has not yet issued a definitive decision on the issue, it has recognized the fundamental differences between PAGA actions and class actions. See Sakkab v Luxottica Retail N. Am., Inc. (9th Cir 2015) 803 F3d 425, 435; Zackaria v Wal-Mart Stores, Inc. (CD Cal 2015) 142 F Supp 3d 949, 954. See §14.51.

In Tyson Foods, Inc. v Bouaphakeo (2016) 577 US ___, 136 S Ct 1036, the U.S. Supreme Court held that employees in a class action were entitled to overtime pay for the time they spent donning and doffing protective equipment at a pork processing plant. The amount of time spent in those activities was established in part by a study performed by an industrial relations expert who conducted 744 videotaped observations and analyzed the average length of time that various donning and doffing activities took for different departments in the plant. The Supreme Court held that the employees could rely on the expert's sample as a permissible means of establishing hours worked. See §15.86.

About the Authors

AASHISH Y. DESAI (Chapter 2: Overview of Federal Law) is the founder of the Desai Law Firm, P.C. in Costa Mesa, where he primarily handles class and collective actions involving antitrust law, state and federal wage and hour law, consumer fraud, lender liability law, and unfair business practices. In 2005, 2006, and 2007, Mr. Desai was selected by his peers as a "Rising Star" in Class Action Law by Super Lawyers Magazine, a privilege reserved for only 2.5 percent of the "Best Young Lawyers in Southern California." In 2009 and 2010, he was selected as a Super Lawyer. He has written extensively on the subject of California class and collective actions, including articles for BNA's Class Action Litigation Report, Los Angeles Daily Journal, Los Angeles Lawyer, Texas Business Litigation Magazine, Consumer Attorneys' FORUM Magazine, and the Orange County Lawyer Magazine. He has been closely involved in class action and employment law issues on numerous appeals, published district court opinions, and been an amicus for various organizations. Mr. Desai served as an Adjunct Professor at Chapman University School of Law from 2004–2006, and he frequently speaks on class action, employment law, reasonable attorney fees, and federal procedure for various organizations. Mr. Desai received his B.A. degree in Economics from the University of Texas in Austin and his J.D. degree from the University of Houston Law Center. Mr. Desai is licensed to practice law in California and Texas. He can be reached at desai@mocalaw.com.

R. BRIAN DIXON (Chapter 4: Compensable Work Time and Regulation of Work Time) is a shareholder of Littler Mendelson in its San Francisco office. Mr. Dixon's practice includes all aspects of employee compensation, including minimum wage, prevailing wage, overtime obligations, and incentive compensation plans. He represents employers in compensation disputes with the United States Department of Labor, California's Division of Labor Standards Enforcement, the enforcement agencies of other states, and private plaintiffs. Mr. Dixon also provides employers with a full range of counsel and legal representation, from consulting on individual disciplinary decisions to representation in state and federal courts. His practice has included wrongful termination issues, equal employment opportunity matters, and labor relations concerns. He received his B.A. from the University of Rochester and his J.D. from Stanford University School of Law. Mr. Dixon has authored books concerning compensation, including Federal Wage and Hour Laws, the Wage and Hour Handbook of the California Trucking Association, and a Guide to Compensating Employees for the California Association of Children's Homes. In addition, he is the general editor for Aspen Publishers' 2007 and 2008 Wage and Hour Answer Book.

LAURA FLEMING (Chapter 10: Employment of Minors) is Of Counsel with Payne & Fears in Irvine. Ms. Fleming specializes in employment litigation and represents employers in all aspects of California labor and employment law. Her practice includes preventative counseling, workplace investigations, administrative complaints, union arbitrations and negotiations, single-plaintiff employment disputes and wage and hour class action litigation. She received a B.A. (cum laude) in linguistics from Harvard University in 1993 and a J.D. (cum laude) from Harvard Law School in 1997. Ms. Fleming was selected to Southern California Rising Stars in Employment and Labor Law in 2007 and 2008 by Southern California Super Lawyers magazine. She was a regular columnist for the Shanghai Star and has contributed articles to the Orange County Lawyer. Ms. Fleming frequently speaks at seminars on various employment law topics, including immigration law. Prior to joining Payne & Fears LLP, Ms. Fleming was an associate at O'Melveny & Myers LLP in Shanghai and Newport Beach.

JEFFREY P. FUCHSMAN (Chapter 5: Payment of Wages and Chapter 6: Regular Rate and Overtime) is a partner in the Glendale firm Ballard Rosenberg Golper & Savitt, LLP, a labor and employment law firm representing management exclusively. For more than 25 years, Mr. Fuchsman has successfully defended employers in a wide range of employment law matters, including wage and hour class actions, wrongful termination, discrimination, and sexual harassment lawsuits. Mr. Fuchsman has appeared in state and federal courts throughout California, and has argued cases before the California Court of Appeal and the Ninth Circuit of Appeals. Mr. Fuchsman was co-counsel for the employer in a landmark case before the California Supreme Court on constructive discharge, Turner v Anheuser-Busch, Inc. (1994) 7 C4th 1238. He also counsels companies on day-to-day employment law issues, including wage and hour, family and medical leave, drug testing, investigations, employee discipline, and terminations. Mr. Fuchsman is also a frequent author and speaker on various labor and employment law topics. He received his B.A. in Economics from the State University of New York at Albany in 1979 and is a 1982 graduate of the University of San Diego School of Law.

ANNE HIPSHMAN (Chapter 11: DLSE Enforcement of Wage and Hour Laws) received her B.S. in 1976 from the University of California, Berkeley, and her J.D. in 1980 from Golden Gate University School of Law. Since becoming an attorney, Ms. Hipshman has practiced in the area of labor and employment law, with an emphasis on wage and hour issues. After several years in private practice, she joined the legal section of the Division of Labor Standards Enforcement (DLSE) in 1989, where she is currently a senior staff attorney. From 2000 to 2005, she served as assistant chief counsel of the DLSE.

BILL HOERGER (Chapter 3: The Employment Relationship) is a Director of Litigation, Advocacy and Training for California Rural Legal Assistance, Inc. in San Francisco. Mr. Hoerger focuses on wage and hour litigation and issues of employee-independent contractor misclassification. He has taught extensively on these issues in state and national legal services conferences. Mr. Hoerger received a B.S. in 1964 and an M.S. in 1968 from Ohio State University and a J.D. in 1970 from the University of Chicago Law School.

TODD F. JACKSON (Chapter 13: Mediating Wage and Hour Disputes) received his B.A. from Johns Hopkins University and his J.D. from the University of California, Berkeley, School of Law. Mr. Jackson is a shareholder of Feinberg, Jackson, Worthman & Wasow in Oakland, where he represents employees in class action cases involving overtime pay, pension benefits, and employment discrimination. He is a frequent panel speaker on employee benefits and wage and hour law and has written articles on ERISA fiduciary rules and wage and hour litigation.

MERYL C. MANEKER (Chapter 13: Mediating Wage and Hour Disputes and Chapter 15: Litigating Wage and Hour Cases: Defendants' Perspective) received her A.B. in 1983 from Brown University and her J.D. in 1988 from New York University School of Law. Ms. Maneker is a partner at Wilson Turner Kosmo LLP in San Diego, where her practice focuses on the defense of class actions and, in particular, of employers in cases involving wage and hour laws. She also defends employers in claims of wrongful termination, discrimination and harassment, and violations of the Americans with Disabilities Act. Among other community involvements, she is the cochair of the Lawyer Representatives Committee of the U.S. District Court for the Southern District of California and a member of the Board of Directors of the Lawyers Club of San Diego.

ERIC W. MUELLER (Chapter 5: Payment of Wages and Chapter 6: Regular Rate and Overtime) is an attorney with the Glendale law firm of Ballard Rosenberg Golper & Savitt, LLP, a labor and employment firm exclusively representing management. Mr. Mueller defends employers on the entire spectrum of employment law litigation and labor relations matters. His work includes providing advice and counsel on employment law strategy and compliance as well as traditional labor relations matters (union organizing, collective bargaining, strikes/picketing, grievance handling and arbitration, and the acquisition/divestiture of unionized business). He received his B.A. in Business Economics from the University of California, Santa Barbara, and his J.D. from the University of California, Los Angeles, School of Law.

MARLENE MURACO (Chapter 8: Workplace Policies and Best Practices) is a shareholder with the San Jose office of Littler Mendelson, the nation's largest labor and employment law firm representing management. She has successfully defended employers in litigation involving the full panoply of employment law claims but has a particular specialty in wage and hour class actions. Ms. Muraco also regularly advises employers on practical, thorough compliance with employment and labor law, with a focus on employers' operational and strategic needs—skills she honed during the 7 years she spent 2 days per week on-site at a Fortune 100 company providing legal advice and practical guidance on employment issues to the company's human resources and employee relations staff. Ms. Muraco is a contributing author to Littler Mendelson on Employment Law Class Actions (LexisNexis 2007), the Wage and Hour Answer Book (Wolters Kluwer 2009) and Employment Arbitration Agreements: A Practical Guide (Aspen Publishers 2009). She is also the author of the following books: Managing Workplace Harassment—A Guide for Preventing, Addressing and Resolving Harassment Issues on the Job; Hire & Fire Module: Ten Steps to Help You Stay Out of Court; and Family and Medical Leave Act: A Ten-Step Federal and State Compliance Guide for Employers.

JESSICA RIGGIN (Chapter 14: Litigating Wage and Hour Cases: Plaintiffs' Perspective) graduated summa cum laude from Boston College in 2008 and obtained her law degree from Columbia University School of Law in 2011. Following law school, she clerked for the Hon. David O. Carter of the U.S. District Court for the Central District of California. Ms. Riggin is currently an associate at Rukin Hyland Doria & Tindall LLP in San Francisco, where her practice involves a wide range of employment law matters, from wage and hour class and collective actions to individual sexual harassment and wrongful termination cases. Ms. Riggin also advises individual clients with respect to contract and severance negotiations. She is a member of the Labor and Employment Law Section of the California State Bar and moderated the Case Law Update Panel at the Section's 2014 Advanced Wage and Hour Conference.

RICHARD S. ROSENBERG (Chapter 5: Payment of Wages and Chapter 6: Regular Rate and Overtime) is a founding partner of Ballard Rosenberg Golper & Savitt LLP in Glendale. He is a graduate of the College of Industrial and Labor Relations at Cornell University and the University of Santa Clara Law School. Mr. Rosenberg has spent his entire career (32 years) providing advice and counsel to management (exclusively) on the entire spectrum of labor relations and employment law matters. He was recognized as a Southern California Super Lawyer by Los Angeles Magazine and the Journal of Law and Politics for 2009. Mr. Rosenberg has received this recognition each year since the award was created. In addition, he was named among the Best Lawyers in America. In 2007, he was named by the San Fernando Valley Business Journal as among the Top 25 attorneys in the San Fernando Valley. Mr. Rosenberg's work includes advice on employment law strategy and compliance, as well as litigation, covering such diverse areas as wage-hour collective and class actions, traditional labor relations matters (union organizing, strikes/picketing, collective bargaining, grievance handling and arbitration, and the acquisition/divestiture of unionized businesses), class actions and individual claims for employment discrimination, sexual and other workplace harassment, wrongful termination, whistleblower complaints, occupational safety and health, trade secret protection/enforcement, WARN Act compliance, immigration law compliance, FMLA, ADA, COBRA, HIPAA, and Sarbanes-Oxley and ARRA whistleblower matters. Mr. Rosenberg is a recognized expert in wage and hour law. He and his partners have written a leading treatise on wage-hour law for California lawyers as part of Advising California Employers and Employees (published by CEB). As part of the firm's preventive practice, Mr. Rosenberg designs and presents customized internal management training programs on a broad range of employment law matters. He has trained well over 15,000 business executives and managers on labor and employment law compliance.

PETER S. RUKIN (Chapter 13: Mediating Wage and Hour Disputes and Chapter 14: Litigating Wage and Hour Cases: Plaintiffs' Perspective) received his B.A. in 1988 from the University of Illinois and his J.D. in 1991 from New York University School of Law. Following law school, he served as a law clerk to U.S. District Court Judge Harry D. Leinenweber in Chicago. Mr. Rukin is a partner with Rukin Hyland Doria & Tindall LLP in San Francisco, where he specializes in complex litigation with a focus on wage and hour claims. He also represents clients in cases involving discrimination, harassment, wrongful termination, breach of contract, whistleblower retaliation, and mass layoff/WARN Act violations. Mr. Rukin frequently speaks and writes on employment issues and currently serves on the Executive Committee of the California State Bar's Labor and Employment Section. He is also a member of the California Employment Lawyers Association and serves on the San Francisco Regional Board of the New Israel Fund.

KIRSTEN G. SCOTT (Chapter 13: Mediating Wage and Hour Disputes) received her B.A. in 1999 from the University of Pennsylvania and her J.D. in 2007 from the University of California, Berkeley, School of Law. Ms. Scott is an associate with Lewis, Feinberg, Lee, Renaker & Jackson P.C. in Oakland, where she focuses on plaintiff-side wage-and-hour, discrimination, and employee benefits law. She has served as a judicial extern for the Honorable Charles R. Breyer of the U.S. District Court for the Northern District of California and as a legal intern with the EEOC and the Legal Aid Society-Employment Law Center.

MICHAEL D. SINGER (Chapter 1: Overview of California Wage and Hour Law) is a 1984 graduate of the University of California, Hastings College of the Law and the managing partner of Cohelan Khoury & Singer in San Diego. He is a contributor to the California State Bar, Litigation Section, Los Angeles Daily Journal, Orange County Lawyer, and Consumer Attorneys of California publications on class action and employment issues and regularly contributes amicus curiae briefs and letters on employment issues on behalf of the California Employment Lawyers Association. He briefed and argued as amicus curiae in National Steel & Shipbuilding Co. v Superior Court (2006) 135 CA4th 1072 (finding Lab C §226.7 pay constitutes compensation) and argued for plaintiffs in Brinker Int'l Inc. v Superior Court before the Fourth District Court of Appeal (supporting class certification of meal, rest, and off-the-clock compensation claims). Mr. Singer has reviewed and coordinated amicus filings on multiple wage and hour issues in the California Supreme Court and Courts of Appeal, including Keller v Tuesday Morning, Inc. (2009); Chindarah v Pick Up Stix (2009); Lu v Hawaiian Gardens Casino (2009); Watkins v Wachovia (2009); Brinkley v Public Storage (2009); Group Brewer v Premier Golf (2008); Ghazaryan v Diva Limousine (2008); Bufil v Dollar Fin. Group (2008); BCBG Overtime Cases (2008); Kenny v Supercuts (2008); Salazar v Avis (2008); and Estrada v FedEx Ground Package Sys. (2007). Mr. Singer is a CLE lecturer on class action procedure and wage and hour issues, including at commercial seminars in San Diego, San Francisco, Orange County, and Los Angeles and presentations before the San Diego and Orange County Bar Associations.

MATTHEW T. WAKEFIELD (Chapter 5: Payment of Wages and Chapter 6: Regular Rate and Overtime) is a partner with the firm of Ballard Rosenberg Golper & Savitt, LLP in Charlotte, North Carolina. Mr. Wakefield graduated in 1984 from California State University, Hayward, and received his law degree in 1994 from the University of San Diego School of Law, where he was a member of the Order of the Coif and the Executive Editor of the Law Review. He is a recipient of the Brundage and Zellmann Award for Excellence in Labor Law and the American Jurisprudence Award for Civil Procedure.

About the 2017 Update Authors

AASHISH Y. DESAI is the update author of Chapter 2 (Overview of Federal Law). See his biography in the About the Authors section.

R. BRIAN DIXON is the update author of Chapter 4 (Compensable Work Time and Regulation of Work Time). See his biography in the About the Authors section.

JEFFREY P. FUCHSMAN is an update author of Chapter 5 (Payment of Wages) and Chapter 6 (Regular Rate and Overtime). See his biography in the About the Authors section.

TODD F. JACKSON is an update author of Chapter 13 (Mediating Wage and Hour Disputes). See his biography in the About the Authors section.

ERIC W. MUELLER is an update author of Chapter 5 (Payment of Wages) and Chapter 6 (Regular Rate and Overtime). See his biography in the About the Authors section.

JESSICA RIGGIN is an update author of Chapter 14 (Litigating Wage and Hour Cases: Plaintiffs' Perspective). See her biography in the About the Authors section.

PETER S. RUKIN is an update author of Chapter 14 (Litigating Wage and Hour Cases: Plaintiffs' Perspective). See his biography in the About the Authors section.

MICHAEL D. SINGER is the update author of Chapter 1 (Overview of California Wage and Hour Law) and Chapter 13A (PAGA Claims). See his biography in the About the Authors section.

MATTHEW T. WAKEFIELD is an update author of Chapter 5 (Payment of Wages) and Chapter 6 (Regular Rate and Overtime). See his biography in the About the Authors section.

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PRACTICE AREA Business Law