- Written by Helen Braginsky and Glen Williams
We recently informed you of the California legislature’s passage of AB 1513, which – if signed by the Governor – would establish new requirements for compensating piece-rate workers for their non-productive time (“NPT”) and would create a safe harbor for employers currently facing lawsuits regarding this issue. We are receiving a lot of inquiries regarding the effects and applications of AB 1513 and will provide new useful information regarding these issues as questions arise.
Safe Harbor – To obtain the litigation safe harbor, an employer must pay its piece-rate employees for under-compensated rest and recovery periods (“R&R”) and for other miscellaneous non-productive time (“other NPT”) for the period of July 1, 2012 – December 31, 2015. One payment option: paying 4% of each employee’s gross earnings over those same 42 months minus a credit for any amounts already paid for R&R and Other NPT.
• NEWSFLASH: The credit for payments made toward other miscellaneous NPT cannot exceed 1% of the employee’s gross earnings in that period, but there is no cap on the credit for R&R already compensated. This means that employers could be credited for every dollar and cent already paid to each employee for his or her R&R time, constituting significant savings in this payment option!
• NEWSFLASH: Also, unlike the other Actual Sums Due payment option, this 4% Gross Earnings option does not require the employer to pay 10% interest on the sums due!
Defining Burdens: The Ninth Circuit Illuminates Class Commonality and PAGA Notice Requirements for Plaintiffs
- Written by Glen Williams and Greg Blueford
On September 3, 2015, the Ninth Circuit issued its decision in the case of Alcantar v. Hobart Service, providing useful clarifications on two key issues regularly involved in current wage and hour class action lawsuits. First, the Ninth Circuit reversed the district court’s denial of class certification because the lower court had improperly evaluated the merits of the plaintiffs’ case rather than focusing on whether the questions presented were common to the class. Second, the Ninth Circuit affirmed the district court’s dismissal of the plaintiffs’ Private Attorneys General Act (“PAGA”) claim because the plaintiff failed to comply with PAGA’s notice requirements by neglecting to disclosed his allegations against the employer did not contain sufficient facts to comply with the notice requirement.
As hourly employees, the potential class of plaintiffs in Alcantar were compensated for the time spent driving to and from different assignments in company assigned vehicles. They were permitted – but not required – to take their company vehicles home at night. The plaintiffs claimed they were entitled to be fully compensated for their commutes in their work vehicles. Their employer did not pay for that time because the plaintiffs could have left their work vehicles at their branch office and driven their personal vehicles to and from home. The plaintiffs would have been liable for any break-ins or damage to their vehicles left at the branch offices, which did not provide sufficient or secure parking space, and thus they argued they had no choice but to drive their work vehicles home at night.