Cal-Peculiarities: How California Employment Law is Different - 2024 Edition

268 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP  www.seyfarth.com not spend most of their time working in any one state.648 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.649 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.650 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.651 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.652 On this issue the California Supreme Court ruled for the employer, concluding that the UCL applies only to work performed within California.653 7.25 Civil Penalties 7.25.1 Civil penalties collectible by the Labor Commissioner Failure to comply with Wage Orders triggers a civil penalty of $50 for each affected employee for each pay period of underpayment for any initial violation, and $100 for each affected employee for each relevant pay period for each further violation.654 Special penalties (which the California Supreme Court has called an extra hour of premium pay) apply to violations of meal-period and rest-break requirements.655 Violations of the Labor Code also can trigger civil penalties. Civil penalties, whether created by a Wage Order or by the Labor Code, can be recovered by the Labor Commissioner. Under California’s peculiar PAGA statute (explained immediately below), civil penalties can also be recovered in private lawsuits by aggrieved employees acting as private attorneys general. 7.25.2 Private recovery of civil penalties for Labor Code violations Various Labor Code provisions historically have subjected employers to enormous civil penalties. The California Legislature believed, however, that the civil penalties potentially available against scofflaw employers were too small, and were too rarely sought. This belief led to the Labor Code Private Attorneys General Act of 2004 (PAGA). PAGA amended certain Labor Code provisions (such as sections 210, 225.5, and 1197.1) to double the existing per-employee, per-pay-period civil penalties from $50 for a first violation and $100 for further violations to $100 for a first violation and $200 for further violations, and created new penalties as well (see below). More generally, PAGA created a new civil penalty for each Labor Code violation except those for which a civil penalty already was provided.656

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