Publications Archives

Impact of Recent California Supreme Court Case on Piece-Rate or Hourly-Plus-Production Pay

By: Kyle D. Kring and Kerri N. Polizzi

On March 5, 2018, the California Supreme Court issued its decision in Alvarado v. Dart Container Corp. of California, 2018 WL 1146645. The Court's discussion of the proper means of calculating an employee's "regular rate of pay" has raised questions among employers regarding the decision's effect on the regular rate of pay used in piece-rate or hourly-plus production bonus structures. This article provides a brief summary of the Alvarado case, discusses its limited holdings, and analyzes the impact, if any, it has on piece-rate or hourly-plus-production pay structures.

In short, the case has no present impact on either piece-rate or hourly-plus-production compensation structures. Instead, the Court went out of its way to exclude these non-hourly payments from its holding, which was limited to flat-sum bonuses alone.

Sessions Sues California Over State Laws Protecting Immigrant Workers (AB 450)

By: Kyle D. Kring

On March 6, 2018, the U.S. Department of Justice (DOJ) filed a complaint against the State of California over three state statutes it claims interfere with its ability to control immigration, thereby allowing California to be a "sanctuary state." The California statutes involved include: (1) Assembly Bill 450 "Immigrant Worker Protection Act," (2) Assembly Bill 103, and (3) Senate Bill 54. The complaint in The United States of America v. The State of California states that "[t]hese provisions are preempted by federal law and impermissibly discriminate against the United States, and therefore violate the Supremacy Clause of the United States Constitution."

McMillin Albany LLC v. Superior Court: California Supreme Court Holds SB 800 is the Exclusive Remedy for Construction Defect Claims in New Residential Construction

By: Kyle D. Kring

On January 18, 2018, the California Supreme Court issued an extremely important ruling for the residential construction industry in McMillin Albany LLC v. Superior Court, No. S229762 (Cal. Jan. 18, 2018). The state high court held that S.B. 800 (commonly known as the "Right to Repair Act") is the exclusive remedy not just for economic loss, but also for property damage, arising from construction defects in original construction, stand-alone homes. In so holding, the Court found that the Legislature clearly and unequivocally intended to reshape the rules governing construction defect actions when it enacted S.B. 800.

S.B. 800 requires parties to engage in an informal process that begins with written notice from the homeowner to the builder of the allegations that the construction falls shorts of the standards required by the Right to Repair Act. The builder then has a right to inspect, test, and cure the alleged defects or to pay the homeowner compensation in lieu of making repairs. If the homeowner goes outside of these procedures in bringing a civil action, the builder can move the court for a stay of that action until the homeowner has complied with these requirements. 

New 2018 U.S. Labor Department Guidelines for Unpaid Interns

By: Kyle D. Kring

The U.S. Labor Department's new guidelines for unpaid interns seek to make it easier for employers to use unpaid interns. The guidelines consist of a new "primary beneficiary test" using seven factors to determine whether the intern meets the standard for being unpaid. This standard is much more lenient for employers after the previous six factor test faced a great deal of criticism.

California employers should be aware of the new guidelines. California has yet to develop policy or case law of its own, making the FLSA guidelines applicable in California.

A Shield, Not a Sword: Insurance Carriers' Rights When Intervening on Behalf of a Suspended Corporation

By: Paul T. McBride

On November 7, 2017, Judge David Brown of the Sacramento County Superior Court ruled that an intervenor insurance carrier may not file a cross-complaint in a construction defect lawsuit. While this ruling is not binding precedent, if upheld on appeal it will affect the rights of intervening insurance carriers, and so merits discussion.

Background- Effect of Corporate Suspension

California Revenue & Taxation Code §23301 provides for suspension of a California corporation's "rights, powers, and privileges" for nonpayment of taxes. Once it is suspended, a corporation is prohibited from taking any actions; it can neither prosecute nor defend lawsuits. Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal.App.3d 242. Since it cannot defend a lawsuit, it is a comparatively simple matter to take a default judgment against a suspended corporation, provided it is properly served. Once a default judgment is entered against a suspended corporation, it may be enforced, i.e. collected, against its insurance carrier, pursuant to California Insurance Code §11580(b)(2), assuming the judgment creditor can prove the damages encompassed by the judgment are covered by the policy of insurance.

Don't Lose Your Lease! (How to Properly Exercise Your Option to Extend)

By: Kenneth W. Chung

If your lease contains an option to extend the lease term and you intend to extend your lease, then you must properly and timely send your written option exercise notice. If your notice is even one day late, then the landlord may reject your request to extend the lease term. In such event, the landlord has the right to evict you from the premises, increase your rent to an amount higher than fair market value, or require other payments or terms as a condition to extending your lease. In order to avoid such potential consequences, the option exercise notice must be properly and timely sent.

Unless you have a form lease, no two leases are identical. Therefore, you should review your lease and option provisions carefully so that you may understand and satisfy all requirements. However, please note that most leases require the option exercise notice to be sent within a certain time period before the lease expiration date. The following is a sample provision:

Tenant may exercise the Option by first giving to Landlord a minimum of 6 months written notice, but not more than 12 months written notice of Tenant's intent to exercise the Option.

Local Minimum Wages Increasing Throughout California

By: Kyle D. Kring

While the California state minimum wage is set to increase on January 1, 2018, many cities and counties throughout the state will increase their minimum wage rates on July 1, 2017. Employers should be well aware of the changes and make sure they are in compliance with state, county and local ordinances.

California State Minimum Wage

The current California state minimum wage rate is set at $10.00/hour for employers with 25 employees or less and $10.50/hour for employers with 26 employees or more. Until January 1, 2022 the minimum wage will increase every year beginning January 1, 2018. The next increase will see the minimum wage for employers with 25 employees or less rise to $10.50/hour and $11.00/hour for employers with 26 employees or more.

For more details and to see a schedule for minimum wage rates in California from 2017-2023, visit the California Department of Industrial Relations page.

California Prohibits On-Duty and On-Call Rest Periods

By: Kyle D. Kring

Recently, in Augustus v. ABM Security Services, Inc., the Supreme Court of California ruled that employers may not require their employees to remain "on call" during rest periods. The Court noted that, "state law prohibits on-duty and on-call rest periods" and "during rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time."

In Augustus, plaintiff and the members of the class were security guards for defendant ABM. They were required to keep their pages and radios on during rest periods and remain available to answer and respond to calls if the necessary. Plaintiffs alleged that ABM failed to provide uninterrupted rest periods as required by state law and ABM acknowledged the fact. ABM argued that their policy did not violate state law because it simply required the guards to keep their devices on in case an incident arose. Importantly, plaintiffs presented evidence that breaks were regularly uninterrupted.

The trial court granted plaintiff's motion for summary judgment on damages, awarding $90 million, finding that an on-call break is no break at all. The Court of Appeal reversed, concluding that merely being on-call does not equate to performing work and therefore state law does not require employers to provide off-duty rest periods.

AB 1513 Update: Ninth Circuit Confirms that "Carve-Out" Provisions in AB 1513 May Violate the Equal Protection Clause

By: Kyle D. Kring

While some employers are alleging that AB 1513 is unconstitutionally vague and an improper retroactive application of California rest break laws, at least two large farmers are contending that they were improperly excluded from using the AB 1513 affirmative defense to their advantage to resolve past rest break claims.

The Court of Appeals for the Ninth Circuit recently held that two large farmers' "complaint states a plausible claim for relief under the Equal Protection Clause, but fails to state a plausible claim that AB 1513's carve-outs amount to a Bill of Attainder." The equal protection claim was remanded to district court for further proceedings. As to the Bill of Attainder claim, the court ruled that plaintiffs were not individually punished by AB 1513, which is a necessary element of a bill of attainder.

Court Denies Request for Stay of AB 1513

By: Kyle D. Kring

Posted: December 5, 2016

Please be advised the court in the Nisei Farmers League v. California Labor and Workforce Development Agency (State of California), the case pending in the superior court for the County of Fresno, issued its final ruling on plaintiff's request for a Stay of AB 1513, which was part of plaintiff Nisei Farmer's prior Motion for Declaratory Relief. The court denied the plaintiff's request for a stay and granted the state's demurrer to the complaint without leave to amend effectively ending the case at the trial court level, but for plaintiffs filing a Writ or an Appeal of the ruling (depending on whether the plaintiffs are able to amend as discussed further below). A copy of the court's Minute Order can be viewed here with the Modified Tentative Ruling on the State's Demurrer and the Tentative Ruling on the Plaintiff's Motion for Partial Declaratory Relief.

As you may recall, the Plaintiff Nisei Farmers League and CBIA recently filed a Motion for Declaratory Relief, following the denial of its motion for a Preliminary Injunction. The plaintiffs argued that AB 1513 and specifically, "actual sums due" and "non-productive time" were ambiguous as a matter of law. The court disagreed finding "in this legal context, 'actual sums due' and 'non-productive time' are defined with 'reasonable specificity' and are not vague and ambiguous as a matter of law."

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