Gear-and-Gavel_dark-blueSome California employers pay their workers by the piece.  In other words, the workers do not get an hourly rate. Rather, they get a certain amount of money per item of whatever it is that they are producing.  

While piece-rate compensation is legal in California, it is subject to certain requirements.  These requirements are set forth in Labor Code section 226.2.

Section 226.2 defines the term “other nonproductive time” as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.”  As explained below, piece-rate workers must be paid separately for their nonproductive time.  Piece-rate workers must also be paid separately for overtime and rest breaks. 

For example, section 226.2(a)(1) explicitly provides that piece-rate employees must be  “compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation.”

Gear-and-Gavel_dark-blueSome companies continue to try to force employees to arbitrate their individual PAGA claims before bringing their representative PAGA claims in court.  Two appellate decisions make it crystal clear that California courts have rejected these efforts, and that workers are not required to litigate PAGA claims in multiple forums.

By way of background, in Iskanian v. CLS Transportation, the California Supreme Court held that employers could not compel plaintiffs to arbitrate their representative PAGA claims.  In the wake of that case, some defendants began to argue that where workers had signed an arbitration agreement, they should be required to arbitrate their individual claims before proceeding with their representative claims in court. Continue reading

Gear-and-Gavel_dark-blueCalifornia Labor Code section 226 requires that an employer provide its employees with wage statements, sometimes known as pay stubs, when it pays their wages.  Section 226(a) provides a list of the specific information that must be included in wage statements.  Employers that ignore these requirements face liability both under section 226(e), and, through PAGA, under section 226.3.

One of the requirements of section 226(a) is that the employer state the total number of hours that an employee worked.  This requirement is important for most employees, because it is the most effective way to figure out whether you are paid for all hours worked.  But what about employees who are not paid by the hour, like salaried employees or employees who are paid on a commission basis? Continue reading

One of the seminal cases in the world of California’s Private Attorneys General Act, or PAGA, is Iskanian v. CLS Transportation.  Iskanian wound its way up to the California Supreme Court, which ultimately held that arbitration agreements that attempt to limit a plaintiff’s right to bring PAGA actions are unenforceable.

Now Iskanian is back in the news.  After years of struggle, the plaintiff, Mr. Iskanian, decided that he did not want to proceed with the case.  (It is unclear why he reached that decision.)  In an interesting twist, he then filed a motion, representing himself, to dismiss his individual claims (which were being arbitrated) as well as his PAGA claims.  His attorneys then sought to replace him with Mr. Frost, another individual from the group of limousine drivers that Mr. Iskanian belonged to.   Continue reading

California employers require many employees to stand all day, despite the fact that they could provide seats if they wanted to.  This practice is common in the retail industry, among others.  But is it legal?

For certain employees, under certain circumstances, the answer is no.  Many of the California wage orders contain language requiring that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  They also provide that “[w]hen employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

When an employer fails to meet either of these requirements, it may be subject to penalties under California’s Private Attorney General Act (“PAGA”).  Although the wage orders themselves do not provide for penalties for violating seating requirements, California Labor Code section 1198 prohibits employers from violating the wage orders.  PAGA permits employees to bring claims for civil penalties based upon violations of the Labor Code.  Therefore, employees can bring PAGA claims for failure to provide suitable seating in violation of the wage orders. Continue reading

The Private Attorneys General Act of 2004 (Labor Code[1] §§ 2698-2699.5) (“PAGA”) was enacted in 2004 in order to allow employees to bring representative actions to recover civil penalties for violations of the Labor Code.  Once an afterthought, in recent years PAGA claims have become increasingly popular.[2]  As the number of PAGA claims has grown, the PAGA landscape has become ever more hotly contested.

This post is part of a series of posts exploring recent development in PAGA jurisprudence.  It focuses on  PAGA’s exhaustion requirements. Continue reading

This month in an unpublished opinion in Green v. Bank of America, No. 13-56023 (9th Cir. Oct. 13, 2015), the Ninth Circuit clarified the standard for exhaustion of administrative remedies under the California Private Attorneys’ General Act (PAGA). The plaintiffs are now petitioning the court to have this decision published, so that the PAGA notice standard becomes the law of the Circuit. Continue reading

The Ninth Circuit Court of Appeals recently clarified two critical issues that pertain to claims brought under California’s Private Attorneys General Act of 2004 (PAGA), Cal. Lab. Code § 2698 et seq..  Each of these decisions is helpful to workers seeking to recover civil penalties under PAGA.

First, in Yocupicio v. PAE Grp., LLC, 795 F.3d 1057 (9th Cir. 2015), the Court held that PAGA penalties may not be counted when calculating damages for the purpose of the Class Action Fairness Act (CAFA).  Under CAFA, when certain other requirements are met, a class action that is filed in state court can be removed to federal court if the defendants can show that the damages at issue are worth more than $5 million.  (In very general terms, most plaintiffs want to be in state court because state courts are perceived as being more favorable to class actions than federal court.) Continue reading