Who is an "Employer" in California?

In Martinez v. Combs, the California Supreme Court addressed the issue of who qualifies as an employer for certain aspects of the Labor Code's minimum wage and overtime laws. In that case, agricultural workers sued both their bona fide employers and also merchants and distributors of the employer's products. The workers claimed these later organizations qualified as "employers."

The Supreme Court credited the lower courts' holdings that merchants and distributors that they were not employers of these workers. The Court held, in essence that an employer is one who: 1) exercises control over wages, hours, or working conditions; 2) suffers or permits to work; or 3) engages, creating a common law employment relationship. This is a broader definition than under the FLSA, and appears to further California’s public policy provide greater protection to employees.

Congress Considers a "fix" to the Gender Pay Gap

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, extending the time plaintiffs have to bring sex discrimination claims based on inequitable pay compared to men. Despite a year under this law, NPR reports that women are still only paid $0.77 for every $1 paid to men in comparable positions:

Congress seeks to address this imbalance with a new act, the Paycheck Fairness Act, which has already passed the House without amendment, which:

• [Replaces the "any factor other than sex" defense with the bona fide factor defense (education, training, or experience).]
• States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based [on] a sex-based differential ...; (2) is job-related ...; and (3) is consistent with business necessity.
• [States] that [the bona fide factor defense] defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and (2) the employer has refused to adopt such alternative practice.
• Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee [in connection with charges or investigations].
• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or ... punitive damages.
• [Allows class actions or certain recovery by the Secretary of Labor.]
• [Authorizes funding and directs agencies to implement certain education and research.]
• [Requires] the EEOC to collect from employers pay information data regarding the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.

As such, if passed and signed into law, this act imposes one obligation (providing data to the EEOC) and at least two litigation restrictions on employer facing discrimination charges under the Act. Cook Brown has many years of experience working on both wage and hour, retaliation, and discrimination employment law issues, and can advise how to implement policies to reflect the Paycheck Fairness Act if and when it becomes law.

Department of Labor: Guidance re Mortgage Loan Officers

The US DOL Administration issued an opinion stating that mortgage loan officers do not qualify as administrative employees exempt under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). This opinion interprets the administrative exemption in a far more detailed way than the DOL has treated the subject in the most recent past, and as such should be interesting reading for many employers.

Contact Cook Brown, LLP for assistance with federal and state wage and hour questions.

Employee Compensation for Time Checking Tweets?

A Wisconsin maintenance worker filed a wage and hour class action for time spent “on call” with a company–owned PDA. The complaint alleges that he was “forced to work off the clock” just because the company provided the PDA. (Rulli v. CBRE.) The complaint alleged that the employer's demand for 15 minute turn-around equals a 24–hour workday.

However, the Courts have debated whether use of convenient electronic devices is a boon to employees or an infringement on their rights. Employees "waiting to be engaged" are generally not paid for that time, while those "engaged to be waiting" are. (Reimer v. Champion Healthcare; Pabst v. Okla. Gas and Elec.) How will this case turn out in California?

For more information, see my article Avoiding the PDA Time Trap at cookbrown.com.