Category Archives: California Questions

Key California Employment Decisions from 2009

Top 5 Decisions by the California Supreme Court in 2009
Originally published in the Daily Journal, February 5, 2010.

The California Supreme Court decided a number of key cases in 2009 that offer a mixed bag for employers attempting to manage and prevent employment litigation. A review of these decisions is instrumental as they can significantly impact employment policies and practices.

Protecting Legal Audits and Other Attorney-Client Privileged Communications

On November 30, 2009, the California Supreme Court issued its decision in Costco Wholesale Corporation v. Superior Court, S163335, reaffirming the importance of the attorney-client privilege by holding that the privilege protects all communications with outside counsel. Specifically, the Court vacated and rejected the trial court’s ruling ordering an in camera review and redacted disclosure of the “factual” portions of the privileged communication. Answer→

California Wage and Hour Issues, Quirky Question # 128

Quirky Question # 128:

I work for a California employer with nonexempt retail employees who earn commissions on their sales.  We have been sued for failing to provide our employees with meal and rest breaks.  I understand the company may be liable to each employee for one hour of pay when a break was not provided.  The class action complaint against us, however, alleges the one hour of pay is based on each employee’s rate after incorporating his/her earned commissions, and that for days in which a missed meal and rest break occurred, the employee is owed two hours of pay.  Is that correct? Answer→

Wage and Hour Cases in the Ninth Circuit

Wage and hour class actions comprise approximately one third of all class action litigation. The Ninth Circuit Court of Appeals has taken note as during the past six months, a number of significant wage and hour cases were decided by the court. Most of these cases involved class allegations where the court considered issues related to employee classification, off-the-clock work and individual liability. These recent decisions provide guidance to employers defending against these claims, particularly since the court seems to have heightened the scrutiny applied to these class actions.

A. Preemptive Strike on Class Certification Permissible: On July 7, 2009, the Ninth Circuit published In re: Wells Fargo Home Mortgage, 571 F.3d 953 (2009) and Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (2009); each favorable for employers defending against wage and hour class actions. In Vinole, the Ninth Circuit affirmed a preemptive decertification motion. Plaintiffs sought to represent a proposed class of Countrywide external home loan consultants whom they alleged were misclassified as “exempt” outside sales employees. Answer→

Use of Surveillance Cameras to Monitor Worksite, Quirky Question # 116

Quirky Question # 116:

I am the owner of a small private company.  I was recently alerted by my secretary that various computers around the office, including some in private offices, have been used late at night to access the internet.  The late-night use has included accessing pornographic websites from a couple of the offices.  I need to discovery who the unauthorized user is, but I cannot afford a security system or security guards.  Can I install a hidden video camera in the offices that have been accessed? Answer→

California Wage and Hour Issues, Quirky Question # 107

Quirky Question # 107:

I keep hearing about companies getting hit with class action lawsuits under California’s tough wage and hour laws.  As I understand it, when a company treats its employees the same under a single policy, it is much more likely to have a class action certified against it.  Our company’s policy is to treat as exempt from overtime its outside sales representatives.

Does this count as a uniform policy, and does it open us up to a lawsuit?  Would we be better off treating some of the sales representatives as exempt and others non-exempt, based on some differences in job duties that already exist or we could implement? Answer→

Vacation Pay Obligations, Quirky Question # 103

Quirky Question # 103:

We recently opened operations in California and are concerned that our current PTO policy does not meet California state standards.  We were caught unawares by the new Massachusetts Supreme Court case on vacation pay and know that the law on vacation policies differs from state to state.  What should we be doing to protect ourselves from employee vacation claims in California? Answer→

Overtime Compensation and “Exempt” Employees, Quirky Question # 89

Quirky Question # 89:

Our company develops software and is based in California with another location in Arizona.  On occasion, our software developers in Arizona come to our California facility to perform some work.  Two of our Arizona based developers have recently complained that while they are in California they should be paid overtime for the work done at our headquarters whenever they work more than 8 hours in a day.  One of the Arizona based employees makes a salary of $60,000 and is classified as exempt.  The other Arizona based employee makes a salary of $77,000 and is also exempt.  Neither one of these employees has worked in California for a whole week; they worked Wednesday through Friday in California four times in a two month period.  They never worked more than 40 hours in a week but both want the company to pay them overtime as if they are a nonexempt employees for the days they worked ten hours.  They both claim that in California they are nonexempt employees and are entitled to overtime.  Must we apply California law to Arizona based employees that work in California so infrequently? Answer→