266 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com Employers must post a “Notice of Retail Employee’s Workweek Rights.” Employers also must maintain for three years all related records for both current and former employees (such as work schedules, copies of written offers to employees for additional work hours, and good faith estimates of work schedules).637 Aggrieved employees may file an administrative complaint or a civil action for nonpayment of wages and penalties.638 7.24 How Does California Law Affect Multi-State Employees? 7.24.1 Out-of-state residents who temporarily work in California In paying employees, employers traditionally apply the wage and hour laws of the state where the employee resides or performs the most work, even when an employee occasionally works elsewhere. When multi-state employees work in California, however, it can be different. Sullivan v. Oracle. In this 2011 decision, the California Supreme Court held that non-California residents who work in California for a California-based employer were subject to California daily overtime laws if they performed their California work for whole days.639 Oracle also held that California’s UCL applies to this work.640 Although Oracle explicitly limited its decision to the circumstances of that case, the decision raised questions about its broader implications: whether Oracle applies to partial days of work performed within California by non-California residents, whether other wage and hour provisions, not just California’s daily overtime provisions, apply to nonresident employees who work in California, and whether Oracle’s rationale extends to employees who work daily overtime in California for employers who are not based in California. The California Supreme Court provided guidance on these and other questions in two 2020 decisions involving airline crew members. The airline cases. Various California class actions on behalf of pilots and flight attendants hit several major U.S. airlines and wound up before three different federal judges. The actions claimed that the airlines’ complex pay systems caused them to violate California statutes mandating minimum wage, timely wage payment, and adequate wage statements. The federal judges applied different rules to reach differing outcomes. The cases found their way to the Ninth Circuit, which referred five issues to the California Supreme Court: (1) Does the Railway Labor Act exemption in Wage Order 9 (for transportation workers) bar a wage statement claim by an employee who is covered by a collective bargaining agreement? (2) Does Labor Code section 226 apply to wage statements provided by an out-of-state employer to an employee who resides in California, receives pay in California, and pays California income tax on wages, but who does not work principally in California or any other state? (3) Do section 226 and the statute on timely wage payment (Labor Code section 204) apply to wage statements and wage payments provided by an out-of-state employer to an employee who, in the relevant pay period, works in California only episodically and for less than a day at a time? (4) Does California minimum wage law apply to all work performed in California for an out-of-state employer by an employee who works in California only episodically and for less than a day at a time?
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