E-Blasts

The California Supreme Court last year adopted a new test, called the ABC Test, for use in cases involving the question of when is a worker an employee versus an independent contractor under IWC Wage orders. That case, Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, (“Dynamex”) was a class action which involved delivery drivers suing their employer for misclassifying them as independent contractors rather than employees. The ABC test, intended to simplify the legal analysis on these types of cases, was a win for plaintiffs and made it more likely that a worker would be found an employee than before. You can read our previously posted E-Blast about the Dynamex decision here.

The Ninth Circuit has revived two class actions against Nike Retail Services, Inc. and Converse, Inc. and they both will now have to face employee allegations that they violated the California Labor Code by failing to pay employees for time spent during “off the clock” exit inspections when leaving the stores.

In Rodriguez, et al. v. Nike Retailers, Inc., the lead plaintiff, Isaac Rodriguez (“Rodriguez”) alleged that employees should have been compensated for the time spent “off the clock” when waiting for the manager to check their bags for stolen items prior to leaving for the day. Similarly, in Chavez, et al. v. Converse, Inc. the lead plaintiff, Eric Chavez sought compensation for time spent submitting to “off the clock” exit inspections every time employees left the store.

As we previously reported here, in May 2016 the U.S. Department of Labor (“DOL”) issued a new overtime exemption rule that had significantly raised the minimum salary threshold required for an employee to qualify for the federal Fair Labor Standards Act (“FLSA”) “white collar” overtime exemption from $23,660 to $47,476. The rule was set to go into effect on December 1, 2016 but shortly before the rule took effect, the proposed rule had been blocked by a Texas federal courthouse after a challenge from 21 states and subsequently invalidated in September 2017.

With today’s technology and, specifically, the prevalent use of social media by the workforce at large, companies and business alike have taken to various social media sites to get their messages out. Labor unions are no different and have utilized social media platforms such as Facebook and Twitter to organize workers and push their agenda forward.

On February 20, 2019, United Farmworkers for America (“UFW”) went “live” for an hour on Facebook to discuss H-2A worker’s rights and to answer any questions that they may have regarding their employment in the United States. The UFW discussed several topics during the live video, such as California’s new overtime requirements, California’s Adverse Effect Wage Rate (“AEWR”), proposed changes to the H-2A program, transportation requirements, and reimbursement costs for traveling to the farm in the United States within the first week of work. The video is available on Facebook and can be found here. Please be advised the video is in Spanish (and is an hour long); however, we have summarized what was discussed in this video for your convenience. 

Why You May Be Seeing “Fight for $15” Buttons Worn By In-N-Out Workers

On Monday, the U.S. Supreme Court denied In-N-Out Burgers' ("In-N-Out") petition to review a decision that upheld a ruling by the National Labor Relations Board (“NLRB”) that ordered In-N-Out to lift its ban on workers wearing “Fight for $15” buttons with their work uniforms.

In-N-Out, as Californian’s are well aware, is a fast food chain famous for its “animal style” burgers and fries as well as its throwback to the 1940s era when the chain first opened its doors. In-N-Out hasn’t changed much since its opening, with clean-cut matching uniforms and high standards for customer service, including being greeted with perky smiles. The “Fight for $15” is a national political movement advocating for the federal minimum wage to be raised to $15 per hour. Currently, the federal minimum wage is $7.25/hour and has not increased since 2009.

On Monday, in a split decision, the California Court of Appeal Second District ruled that employees who are required to call in before an on-call shift, but never physically report to work, may be entitled to reporting time pay.

Plaintiff Skylar Ward (“Ward”) worked for Tilly’s, a retail clothing store with locations throughout California and the United States. In 2012, Ward worked as a sales clerk at the Torrance, California location. During her employment with Tilly’s, plaintiff and other employees were scheduled to work a combination of “regular” and “on-call” shifts (also referred to as “call-in” shifts”). For on-call shifts, Tilly’s required that employees call the store two hours before the start of their on-call shift (or by 9:00 p.m. the night before if their on-call shift was scheduled to begin earlier than 10:00 a.m.) to ascertain whether or not they would come into work that day depending on the foot traffic at the store. Tilly’s told employees that they should consider their on-call shift a “definite thing” until they are actually told they do not need to come in and were disciplined if they failed to contact their stores before on-call shifts. Importantly, and the crux of this case, is that employees were only paid if they were required to actually come into the store and work.

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