Category: Wage & Hour Rights

New Laws For Commissioned Employees

California employees receiving commissions have a right to know how their commissions will be calculated and paid.

Effective January 1, 2013, employers who pay employees by commission are required to memorialize the commission arrangement in a written contract that includes: the method for calculating the commissions, a description of when the commissions will be deemed earned and how they will be paid and requires the employee to sign a “receipt” retained by the employer. California Labor Code § 2751.

Labor Code § 204.1 defines commissions as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Even though there is no corresponding penalty provision for violation of Labor Code § 2751, employees still have the option to file a claim for penalties under the Private Attorneys General Act of 2004 (Labor Code §§ 2698, et seq.) for violation of this law.

Not all commissions and bonus plans must comply with this new law, but consult with an attorney at Aegis Law Firm, PC to determine whether the commission structure and/or bonus plan you are subject to implicates Labor Code § 2751.

Arbitration Agreements

Arbitration Agreements – Sleight of Hand Not Allowed

Avery v. Integrated Healthcare Holdings

The California Court of Appeal recently considered whether or not plaintiffs seeking to pursue claims as a class for wage and hour violations could be compelled to arbitrate claims based on a series of documents purporting to reflect acknowledgements to arbitrate such claims.  The Court of Appeal affirmed the trial court decision finding no enforceable arbitration agreement existed because the incomplete and confusing patchwork of documents Defendant relied upon were not sufficient to establish an agreement to arbitrate.  The Court reasoned that Defendant needed to demonstrate that plaintiffs agreed to the specific arbitration agreement that Defendant contended bound plaintiffs to arbitrate their claims.  Because none of the documents referred to the specific employee handbook used as the source of the arbitration policy, the Court found that even if plaintiffs signed the acknowledgements, the acknowledgements were not sufficient to establish that plaintiffs had agreed to the arbitration policy.

iWANT My Wages: Apple Slapped With “BAG CHECK” Class Action

Two former retail employees of Apple, Inc. have brought suit against the trendy-electronics giant in the United States District Court for the Northern District of California. The two employees seek to represent a national class of Apple retail employees who were subject to a mandatory “bag check” before lunch and at the close of each work day while “off the clock”.

Amanda Frlekin a resident of Los Angeles, and Dean Pelle, a resident of Brooklyn, New York allege that Apple had a common policy of requiring employees to undergo personal bag and package checks that could last anywhere from 5 to 15 minutes per check. The problem is that these checks occurred before the employees were allowed to leave for lunch, or the end of their shifts but after they had already clocked out. Although this may seem like an otherwise trivial issue, the resultant effect could mean that employees were shorted over an hour’s worth of waged for each week they worked. Throwing penalties into the mix and quantifying these claims by a nation-wide class of individuals means Apple could face tens of millions of dollars in damages for unpaid wages.

Apple, Inc., however, is not the only offender. Many other retail companies expose themselves to this type of liability by forcing their employees to undergo bag checks after these employees have already punched out.

Judge Green Lights Bag Check Class Action Against CVS

Los Angeles Superior Court Judge Richard Rico indicated he will certify a class of more than 40,000 Caremark CVS Corp. employees who were not compensated for time spent in security inspections/getting their bags checked.

The law in this regard is clear that employees must be compensated for all of the time that they are “subject to the control of the employer.” CVS has had a policy of having their employees clock out and wait near the front of the store for a manager or loss prevention agent to check their bags before they can leave the store. This time that they spent waiting and having their bags checked was not compensated and violates California law. Continue reading “Judge Green Lights Bag Check Class Action Against CVS”

If You’re Not Salaried, You’re Not Exempt

Although most of the focus in determining whether an employee is exempt from the requirements of overtime and meal and rest periods is usually focused on the duties the employee performs, California’s Sixth Appellate District recently reminded us that there is another, equally important factor to consider.  In order to be “exempt,” an employee must be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” Continue reading “If You’re Not Salaried, You’re Not Exempt”