©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 267 The Supreme Court answered the five questions as follows: 1. When the Wage Order RLA exemption applies. The RLA exemption applies only to Wage Order 9 requirements, not to the broader requirements imposed by section 226. (See § 5.7.) 2. When section 226 applies to multi-state employees. Section 226 applies to all employees whose principal place of work is in California. The principal place of work for an employee is in California if the employee works mostly in California. And even if the employee does not work mostly in any single state, the principal place of work for an employee is in California if employee’s base of work operations is in California. 3. The limited geographical scope of sections 204 and 226. These sections do not apply to pay periods in which an employee works only episodically and for less than a day at a time in California. These sections do apply if the employee works primarily in this state during the pay period, or if the employee does not work primarily in any state but is operationally based in California. 4. How minimum wage is determined. State law limits on wage borrowing permit pay schemes that promise to pay for all hours worked at or above the minimum wage, even if particular components of those schemes fail to attribute to each compensable hour a specific amount equal to or greater than the minimum wage. (See § 7.2.) 5. The geographical scope of minimum wage law is not determined. The Supreme Court did not reach the question of whether California’s minimum wage laws apply to out-of-state employers or to employees who work in California only episodically and for less than a day at a time.604 A Ninth Circuit decision extended the California Supreme Court’s holding to California-based employees who worked for a California-based employer.605 That decision, Bernstein v. Virgin America, Inc., involved a Californiabased airline’s California-based flight attendants—who either lived in California or were based in California for business purposes.606 The California flight attendants spent 31.5% of their time working within California, and did not spend most of their time working in any one state.607 Citing these facts, and the airline’s California base, the Ninth Circuit held that California law on overtime, breaks, and wage statements applied to the flight attendants.608 Bernstein couched its holding in the facts before it—employees for a California-based company who spent a significant percentage of their time in California and less than 50% of their time in any other state.609 Nevertheless, Bernstein emphasizes that employers must tread carefully around California wage and hour laws with Californiabased employees even when those employees spend a majority of their time out of state. Offshore cases. The Court of Appeal applied the Supreme Court’s lessons in the airline cases in a case featuring ship-bound employees of a Louisiana-based company who serviced oil platforms off the shore of California, while residing in other states. Because the ship was docked in and sailed to reach its work destinations, the employees mostly worked within California, and so California law, not Louisiana law, governed their wage and hour claims. The Court of Appeal explained that California’s wage and hour laws apply to any workers, regardless of residency, who perform all or most of their work in California.610 7.24.2 Using the UCL to pursue FLSA claims for work done outside of California Sullivan v. Oracle also ruled on the plaintiffs’ ambitious claim that they could use California’s UCL to pursue FLSA violations that occurred outside of California.611 On this issue the California Supreme Court ruled for the employer, concluding that the UCL applies only to work performed within California.612
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