Storm's California Employment Law

Overriding State Minimum Wages?

Title IV of the so-called "Estate Tax and Extension of Tax Relief Act of 2006"  (as passed by the House) would increase the federal minimum wage on this schedule:

`(A) $5.15 an hour beginning September 1, 1997;
`(B) $5.85 an hour, beginning on January 1, 2007;
`(C) $6.55 an hour, beginning June 1, 2008; and
`(D) $7.25 an hour, beginning June 1, 2009;'.

So, California employers wouldn't be affected until June 1, 2009, assuming there's no further state action, right?

Wrong.

For tipped employees, it would override California law with respect to the minimum wage:

`(2) Notwithstanding any other provision of this Act, any State or political subdivision of a State which on or after the date of enactment of the Estate Tax and Extension of Tax Relief Act of 2006 excludes all of a tipped employee's tips from being considered as wages in determining if such tipped employee has been paid the applicable minimum wage rate, may not establish or enforce the minimum wage rate provisions of such law, ordinance, regulation, or order in such State or political subdivision thereof with respect to tipped employees unless such law, ordinance, regulation, or order is revised or amended to permit such employee to be paid a wage by the employee's employer in an amount not less than an amount equal to--

`(A) the cash wage paid such employee which is required under such law, ordinance, regulation, or order on the date of enactment of the Estate Tax and Extension of Tax Relief Act of 2006; and
`(B) an additional amount on account of tips received by such employee which amount is equal to the difference between the cash wage described in subparagraph (A) and the minimum wage rate in effect under such law, ordinance, regulation, or order, or the minimum wage rate in effect under section 6(a), whichever is higher.'

So, the minimum wage for regular employees would be $6.75 per state law, but tipped employees would be paid $2.13 an hour plus tips, because California Wage Orders would be void with respect to them.

The Legislature would be forced to act on or about the day of the change to avoid this, and I could see both sides using the urgency to their advantage.

Rocky waters ahead.

(Personally, I give this bill about a 25% chance of passing, so maybe it's not worth the worry)

UPDATE: This would have the same effect in Alaska, Minnesota, Montana, Nevada, Oregon, and Washington.  See a theme here? Only Nevada poses a meaningful electoral loss to the GOP. The others are solid blue.

Court of Appeal Invalidates Section 10(e) of Wage Order

Order issued by Industrial Welfare Commission exempting employees covered by a collective bargaining agreement from statutory requirement that two meal breaks be allowed for shifts of more than 10 hours contravenes statute and is invalid.

Bearden v. U. S. Borax, Inc.

Gov's Minimum Wage Hike: Steeee-rike One

The Legislature voted to move both versions of Democratic plans to up the state minimum waage out of committee.  A competing proposal by the Governor was not moved out of committee.  The difference? The Governor's raise is a one time hike.  The Democratic version is tied to inflation.  The Governor has threatened to veto an inflation-linked version.

The Sacramento Bee has more.

Legislature Contemplates 3 Minimum Wage Measures

The San Diego Union-Tribune has this article.  The main differences between Democratic and Republican versions are the inclusion of an automatic inflation-based increase, which the Governor has rejected.

Progressive Concrete, Inc. v. Parker

Employer's failure to post an undertaking pursuant to Labor Code Sec. 98.2(b) does not deprive trial court of jurisdiction to consider employer's appeal of labor commissioner’s award in favor of employee.

Mills v. Sup. Ct. (Bed, Bath Beyond) More LC 226.7 Controversy!

Just a few days ago, the Fourth District Court issued an opinion holding that 226.7 penalties were "wages."  Now, today, the Second District has held the opposite.

This case makes no reference to the recent National Steel and Shipbuilding case.

For those of you unsure about rules of stare decisis in California, they are different in theory, if not in practice, than federal courts.  Just because a Superior Court feeds into a District Court of Appeal, that court is not bound by the decision of its particular District.  So just because you're in the Fourth or Second district doesn't matter in the way that it does if you're in the District of Nevada and there's a split of opinion between the Ninth and First Circuits in the federal system.

You can find all of this in Witkin.  Of course, there's at least something to be said persuasively to the judge that he might get reversed if it goes to her particular higher court.

The Supreme Court will be resolving this.

Labor Code 226.7: National Steel and Shipbuilding Co. v. Sup. Ct. (Godinez)

The Fourth District has dropped a bomb on wage and hour law in California.  Labor Code section 226.7 has long been the subject of dispute between plaintiff and defense sides of the bar over whether it is a "penalty" or a "wage."

After years of thin authority suggesting it was a "wage," the DLSE itself, and the First District pushed the tide in the other direction.  Now, the Fourth District has created a split of authority in the state.

This Court holds that it is both a penalty and a wage.  (Relying on the kind of legislative history that is currently deemed irrelevant.)  According to this holding, the four year statute of limitations applies, and restitution is available under the UCL.

What a mess!

The Supreme Court's English

I know Justice Stevens is old, but seriously.  For those of you needing to understand today's IBP, Inc. v. Alvarez decision from the Supreme Court, I've cribbed from the OED2 for you.

doff, v.
(dQf) Pa. tense and pple. doffed (dQft). [Coalesced form of do off: see do v. 47. Cf. also daff v.2
   In ordinary colloquial use in north of England (not in Scotl.). Elsewhere, since 16th c., a literary word with an archaic flavour. Ray noted it as a northern provincialism; Johnson, as ‘in all its senses obsolete, and scarcely used except by rustics’. In 19th c., from the time of Scott, very frequent in literary use.]
   1. trans. To put off or take off from the body (clothing, or anything worn or borne); to take off or ‘raise’ (the head-gear) by way of a salutation or token of respect.
   c1350 Will. Palerne 2342 Dof blive þis bere skyn.  c1400 Mandeville (Roxb.) xxv. 120 He doffez his hatte.  1401 Pol. Poems (Rolls) II. 107 The sacred host+to whiche we knele and doffe our hodes.  1483 Cath. Angl. 103/1 To Doffe, exuere.  1595 Shakes. John iii. i. 128 Thou weare a Lyons hide! doff it for shame.  1596 Spenser F.Q. vi. ix. 36 Calidore+doffing his bright armes, himselfe addrest In shepheards weed.  1621 G. Sandys Ovid's Met. xiii. (1626) 259 Then made him d'off those weeds.  1714 Gay Sheph. Week iv. 21 Upon a rising Bank I sat adown, Then doff'd my Shoe.  1768 Beattie Minstr. i. xxxv, The little warriors doff the targe and spear.  1808 Scott Marm. vi. xi, Doffed his furred gown, and sable hood.  1859 Tennyson Enid 1444 The+Earl+cast his lance aside, And doff'd his helm. 

   †b. Const. off; also intr. with with. Obs. rare.
   ?a1400 Morte Arth. 1023 Þow doffe of thy clothes, And knele in thy kyrtylle.  1643 [see doffing vbl. n.].   1764 Foote Mayor of G. ii. Wks. 1799 I. 186 If you will doff with your boots, and box a couple of bouts.