298 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 45 See http://www.ci.richmond.ca.us/2615/Minimum-Wage-Ordinance (visited Mar. 26, 2023). 46 See https://www.sandiego.gov/compliance/minimum-wage (visted Mar. 26, 2023). 47 See https://www.sanjoseca.gov/your-government/departments-offices/public-works/labor-compliance/minimum-wage-ordinance (visited Mar. 26, 2023). 48 See https://www.santamonica.gov/minimum-wage (visted Mar. 26, 2023). 49 Id. 50 Id. 51 Id. 52 Id. 53 See Lab. Code § 218.5(a) (“In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney s fees and costs to the prevailing party if any party to the action requests attorney fees and costs upon the initiation of the action.”); DLSE Opinion Letter 2002.01.29 at 10-11 (arguing that Labor Code sections 221-223 provide “a statutory basis “for the enforcement of non-overtime contract based wage claims”; “California law explicitly prohibits employers from paying employees less than the wages required under any statute or … contract … .”). 54 8 Cal. Code Regs. § 11040(2)(K). 55 Morillion v. Royal Packing Co., 22 Cal. 4th 575, 588 (2000) (federal labor law differs substantially from state law with respect to concept of hours worked); Troester v. Starbucks Corp., 5 Cal. 5th 829, 837-42 (2019 (same); Frlekin v. Apple, Inc., 8 Cal. 5th 1038 (2020) (same); Wage Order 4, in section 2(K), highlights the distinction between California and federal law on this point, defining “hours worked” to include “all the time the employee is suffered or permitted to work, whether or not required to do so,” and also “the time during which an employee is subject to the control of an employer,” while stating that within the health care industry the term “hours worked” means simply “the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act.” 56 Jong v. Kaiser Found. Health Plan, Inc., 226 Cal. App. 4th 391 (2014) (upholding summary judgment against a nonexempt pharmacy manager’s claim for unpaid off-the-clock work, where the manager was aware of Kaiser’s timekeeping rules and policy of paying for all hours worked and presented no evidence that Kaiser management knew or should have known of his unreported overtime hours). 57 Ridgeway v. Walmart Inc., 946 F.3d 1066, 1077 (9th Cir. 2020) (the employer’s argument that the law should not require pay for time when the law compels the drivers not to work has “logical appeal, but it does not follow California law. In California, an employer must pay minimum wages whenever it controls the employee.”). Ultimately, “the question of control boils down to whether the employee may use break or non-work time however he or she would like.” Id. at 1079. Yet, as the Ninth Circuit also noted: “there is no clear definition of what constitutes employer control under California law.” Id. at 1090. 58 Stoetzl v. California Dep’t of Human Res., 7 Cal. 5th 718 (2019) (holding, in a case involving a state employer of correctional officers, that the state’s Pay Scale Manual rather than the Wage Order applies and reversing summary judgment for the employer as to duty-integrated walk time, which may be compensable under the Pay Scale Manual). The Supreme Court also rejected a walk-time claim by a subclass of union-represented employees who were subject to a CBA, holding that the legislatively approved CBA governed pay for that activity and that there was no allegation that the state employer had failed to pay that amount. A dissenting opinion by Justice Liu, joined by Justice Cuellar, argued that the Supreme Court should have applied the Wage Order definition of compensable work time as to the claim for minimum wages. 59 8 Cal. 5th 1038 (2020). 60 Id. at 1042. 61 Id. at 1054. Frlekin applies retroactively, even though the result surprised many in the employer community. Frlekin concluded that the result should have been foreseeable given the distinction the Supreme Court sees between (a) an employer’s control over a voluntary commuting service meant to benefit employees and (b) an employer’s control over premises exercised to serve its own security-related needs. 62 Id. at 1056. 63 Frlekin v. Apple, Inc., 973 F.3d 947 (9th Cir. 2020). 64 IWC Wage Orders § 5(A) (exceptions apply for Acts of God and other cause beyond the employer’s control). 65 IWC Wage Orders § 5(B) (exceptions apply for Acts of God and other cause beyond the employer’s control). 66 Price v. Starbucks, 192 Cal. App. 4th 1136, 1147 (2011). 67 Aleman v. AirTouch Cellular, 209 Cal. App. 4th 556, 569-74 (2012). 68 Ward v. Tilly’s, Inc., 31 Cal. App. 5th 1167, 1171 (2019). 69 Id. at 1191 (Egerton, J., dissenting). 70 Herrera v. Zumiez, Inc., 953 F.3d 1063 (9th Cir. Mar. 19, 2020). 71 DiMercurio v. Equilon Enterprises LLC, No. 19-cv-04029-JSC, 2020 WL 227262 (N.D. Cal. Jan 15, 2020); Wood v. Marathon Ref. Logistics Servs. LLC, No. 19-CV-04287-YGR, 2020 WL 1877713 (N.D. Cal. Apr. 15, 2020) (expressly deferred determining whether this standby time was subject to the Ward v. Tilly’s standard or the more traditional test for controlled standby). 72 Id.
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