Category Archives: Wage and Hour Issues

Oracle: Non-Residents Performing Work in CA For CA Companies Are Covered by CA Overtime Provisions

Sullivan v. Oracle Corporation, et al.

June 30, 2011, in Sullivan v. Oracle Corporation, et al., the California Supreme Court decided three certified questions from the Ninth Circuit regarding work performed in the State of California by non-residents for California based employers.

Three plaintiffs worked as “Instructors” for Oracle Corporation from 2001 to 2004. As Instructors, Plaintiffs’ job was to train Oracle’s customers in the use of the company’s products. Two Plaintiffs resided in Colorado, one Plaintiff resided in Arizona. Plaintiffs worked mainly in their home states but also traveled to work in California and 19 other states. In the three-year period, one plaintiff worked approximately 74 days in California, one worked 110 days and one worked 20 days.

Plaintiffs sued Oracle under three theories. First, Plaintiffs claimed overtime compensation under the Labor Code for days longer than eight hours, and weeks longer than 40 hours, in which such work was performed entirely in California (See Lab. Code §§ 510 (a), 1194.) Second, Plaintiffs restated the same claim alleging violation of California’s overtime laws as one for restitution under the Unfair Competition Laws (“UCL”) (Bus. & Prof. Code § 17203.) Third, and again under the UCL, Plaintiffs claimed restitution in the amount of overtime compensation due under the federal Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 207(a)) for weeks longer than 40 hours worked entirely in states other than in California. Answer→

Kasten v. Saint-Gobain: Supreme Court Rules on Oral FLSA Employee Complaints

Kasten v. Saint-Gobain: Supreme Court Rules That Oral Employee Complaints Are Afforded FLSA Retaliation Protection


On March 22, 2011, the United States Supreme Court issued its long-awaited opinion in Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (Mar. 22, 2011), holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”).

The Court’s decision has potentially significant implications beyond the FLSA, as several other federal statutes—including the Occupational Safety and Health Act (“OSHA”), the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act—include similar language in their anti-retaliation provisions.  Of particular importance to employers, the holding reaffirms a best practice for employee complaints: Pay attention to all employee complaints, regardless whether they are oral or written.


Kasten, a former employee in Saint-Gobain’s Portage, Wisconsin facility, received repeated warnings, and ultimately was terminated, for violating company policy requiring hourly employees to clock in and out of work. See Kasten v. St. Gobain Performance Plastics Corp., 570 F.3d 834, 836 (7th Cir. 2009).  Following his termination, Kasten filed a lawsuit alleging that he was discharged in retaliation for making oral complaints to his supervisors and human resources personnel that the location of the company’s time clocks prevented employees from recording their time spent “donning and doffing” protective gear.  See id. at 835-36. Answer→

Quirky Question # 169: Independent Contractor or Employee?


Our company is located in Washington. To limit costs, we turned to use independent contractors in order to avoid paying benefits, limit overhead, and increase flexibility. But when can someone we hired as an “independent contractor” and for whom we expressly retained no “right to control” nonetheless be deemed an employee, exposing the company to unplanned risks under Federal and some state laws? Answer→

Quirky Question # 165, Employment Cases Before the U.S. Supreme Court


This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term? 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→

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→

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→

“Long Term” Independent Contractors, Quirky Question # 86

Quirky Question # 86:

We run an insurance company.  Some members of our workforce are employees; some are independent contractors.  Admittedly, some of our independent contractors have held this status for some time.

We don’t pay our independent contractors overtime for their efforts – we really don’t even know how many hours they put in.  I’ve heard some rumors that some of our independent contractors are unhappy about this arrangement and are talking about suing us for unpaid overtime.  Does this present any risks to us? Answer→

Abusing PTO Policies, Quirky Question # 60

Quirky Question # 60:

We are having trouble managing exempt employees’ paid time off (PTO).  Our current policy allows new employees to begin earning PTO right away, with the potential to earn up to 120 hours of PTO per calendar year.  PTO that is earned but not used is paid out or carried over at the end of each calendar year.

The problem we are having is that certain exempt employees know that they only need to work for fifteen minutes or so to be paid for an entire day.  These employees will spend fifteen minutes or so “working” while out of the office for personal reasons.  As a result, at the end of the year, these employees tend to receive a larger payout / carry over than others even though they are out of the office just as much (if not more) than their fellow exempt employees.  What can we do to curb this problem?

[Quirky Question No. 60 is another one of our West Coast questions, this one posed to the lawyers in our firm’s Anchorage, Alaska office.  Wendy Leukema, who has addressed other Quirky Questions posed to her and her colleagues in Anchorage provides her analysis below.  Note that Wendy’s analysis is not dependent on statutory or common law unique to Alaska; rather, she analyzes this inquiry from the perspective of the federal statute now causing such anguish to employers and such joy to the plaintiffs’ employment bar, the FLSA.] Answer→