©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 303 (3) If an employee of a temporary services employer is assigned to work for a client engaged in a trade dispute, that employee’s wages are due and payable at the end of each day, regardless of when the assignment ends. (4) If an employee of a temporary services employer is assigned to work for a client and is discharged by the temporary services employer or leasing employer, wages are due and payable as provided in Section 201. (5) If an employee of a temporary services employer is assigned to work for a client and quits his or her employment with the temporary services employer, wages are due and payable as provided in Section 202. 152 SB 671, 2019 bill amending Lab. Code §§ 203, 203.1, 220, and adding Lab. Code § 201.6. 153 Lab. Code § 201.5. 154 See Lab. Code § 203. See Mamika v. Barca, 68 Cal. App. 4th 487, 492-93 (1998) (penalty provided for in section 203 is 30 workdays, not merely 30 calendar days). 155 Smith v. Rae-Venter Law Grp., 29 Cal. 4th 345, 354 & nn.2-4 (2002) (citing 8 Cal. Code Regs. § 13520: “a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203”). See also Choate v. Celite Corp., 215 Cal. App. 4th 1460, 1468 (2013) (employer not liable when it acted in good faith); Road Sprinkler Fitters Local Union No. 669 v. G&G Fire Sprinklers, Inc., 102 Cal. App. 4th 765 (2002). 156 Davis v. Morris, 37 Cal. App. 2d 269, 274-75 (1940). 157 Although no California appellate authority seems to have addressed the constitutionality of imposing a penalty of thirty days’ wages for a relatively minor underpayment of wages, courts have recognized that a “penalty prescribed [can be] so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” United States v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992). 158 Diaz v. Grill Concepts Servs., Inc., 23 Cal. App. 5th 859, 874 (2018) (“Labor Code section 203 does not imbue trial courts with the discretion to waive or reduce waiting time penalties.”). 159 Nishiki v. Danko Meredith, APC, 25 Cal. App. 5th 993 (2018) (as to initial delay in payment the employer’s failure to pay termination wages was not willful, because an inadvertent clerical error resulted in the wrong amount being shown on the paycheck; but delay in sending a corrected check was willful and warranted waiting-time penalties). 160 McCoy v. Superior Ct. (Staffing Servs., Inc.), 157 Cal. App. 4th 225 (2007). 161 Pineda v. Bank of Am., NA, 50 Cal. 4th 1389, 1398 (2010) (“[W]e conclude . . . section 203(b) contains a single, three-year limitations period governing all actions for section 203 penalties irrespective of whether an employee's claim for penalties is accompanied by a claim for unpaid final wages.”). 162 Pineda v. Bank of Am., NA, 50 Cal. 4th 1389 (2010). 163 Id. at 1401 (internal citations omitted). 164 Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 112 (2022) (“an employee suing for failure to pay wages by the deadline . . . is suing for nonpayment of wages for purposes of an attorney fee award under Labor Code section 218.5.”) 165 Office of Chief Counsel Advice Memorandum 201522004, https://www.irs.gov/pub/irs-wd/201522004.pdf (last visited May. 26, 2022). The Chief Counsel’s advice memo, provided to field or service center employees, is not something that a taxpayer can cite as precedent. 166 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (describing Ninth Circuit opinion). 167 Id. (internal quotation marks and citations omitted). 168 Peabody v. Time Warner Cable, Inc., 59 Cal. 4th 662, 667 (2014). 169 29 C.F.R. § 541.600(a). 170 Lab. Code § 515(a). 171 Semprini v. Wedbush Sec., Inc., 57 Cal. App. 5th 246 (2020). 172 Conley v. PG&E Co., 131 Cal. App. 4th 260, 271 (2005) (“[N]othing in California law … precludes an employers from following the federal rule that permits them to require the use of vacation leave for partial-day absences without causing otherwise exempt employees to become nonexempt under the salary basis test.”). 173 DLSE Opinion Letter 2009.11.23. 174 Rhea v. Gen. Atomics, 227 Cal. App. 4th 1560, 1575-76 (2014) (“We conclude that regardless of whether the absence is at least four hours or a shorter duration, a requirement that exempt employees use Annual Leave time for a partial day absence does not violate California law.”). 175 See IWC Wage Orders § 1(A)(1). 176 29 C.F.R. § 541.106(b). 177 Heyen v. Safeway Inc., 216 Cal. App. 4th 795, 827 & n.8 (2013) (rejecting argument that trier of fact should account for simultaneously performing exempt and nonexempt tasks, such as actively managing store while also checking and bagging customer grocery purchases; noting that California Legislature has not elected to follow the federal regulation). 178 See old 29 C.F.R. § 541.113. 179 See IWC Wage Orders § 1(A)(3).
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