Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

By R. Brian Dixon

The time period for the California Supreme Court to grant review of Arechiga v. Dolores Press, 192 Cal. App. 4th 567 (2011), has expired without review being granted. This is mixed news for employers, as the result in Arechiga, while favorable to employers, does not resolve the questions posed by the Court of Appeal’s decision.

In Arechiga, the court concluded that an employer can include overtime in a fixed salary amount. The court found that each of the requirements for doing so under older California case law was met as the employer had, before the work at issue was performed, specified: (1) the days that the employee would work each week; (2) the number of hours the employee would work each day; (3) the specific amount of the guaranteed salary; (4) the hourly rate on which the salary was based; and (5) that the salary covered both regular and overtime hours.

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On May 11, 2011, the California Supreme Court denied review of a state appellate court's decision in Price v. Starbucks. As we previously discussed, in that case, the California Court of Appeal, Second District, upheld the lower court’s orders striking the plaintiff’s itemized wage statement claim for failure to show injury and his reporting time pay claim finding no violation of law.
 

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By Josh Kirkpatrick

On May 9, 2011, the U.S. Department of Labor announced the launch of its first smartphone application, an electronic timesheet employees can use to track their hours of work, including breaks. According to a DOL press release, the information tracked through this application “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The app, currently available in English and Spanish and only for iPhone, iPad and iPod Touch devices, allows users to input their hourly rate of pay and calculates the amount of wages due to the worker. Additionally, through the app, users can add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. A glossary, limited information regarding wage and hour laws, and contact information for the DOL are accessible through the app. The agency stated it will pursue the development of updates that allow employees to track their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest, among other pay information.
 

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By Niza Motola

On June 1, 2011, Florida’s minimum wage will increase to $7.31 per hour, a six cent increase from the previous $7.25 calculation effective on January 1, 2011. Employees who receive tips as compensation will see their minimum wage increase to $4.29 per hour, a six cent increase from $4.23. This unexpected increase is the result of a Florida court decision holding that the Florida Agency for Workforce Innovation violated Florida’s Constitution by failing to raise the Florida minimum wage on January 1, 2011. 

In Cadet v. Florida Agency for Workforce Innovation, filed in January 2011, the court agreed with the plaintiffs (including Restaurant Opportunities Center of Miami and Farmworker Association of Florida) that the Florida agency had incorrectly calculated the Florida minimum wage. Specifically, the plaintiffs had argued that in calculating the Florida minimum wage, the state agency improperly decreased the rate based on a decrease in the cost of living. As a result of a decrease in the cost of living from 2008 to 2009, the agency determined that for 2010, the state minimum wage rate should be decreased from $7.21 to $7.06. The agency then used the reduced 2010 state minimum wage rate of $7.06 to calculate an adjusted minimum wage rate for 2011 using the 1.4 percent increase in the cost of living from 2009 to 2010, resulting in a rate of $7.16, less than the federal minimum wage. The court held that under the Florida Constitution, the minimum wage cannot be decreased, resulting in a new calculation and the six cent increase, effective June 1, 2011.

On May 3, 2011, following the court ruling, the agency updated its web page on Florida’s minimum wage to reflect the increase to $7.31. This update may signal that the agency will not appeal the court’s ruling.

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By Wayne Hersh and Heather Peck

In February 2011, the California Court of Appeal rejected an employer’s use of an "artificial" workweek where the workweek ran from 12:00 a.m. on Monday to 11:59 p.m. the following Sunday and where the employees worked a 14-day shift from Tuesday to Tuesday.¹ In its opinion, the court held that while an employer "may designate any workweek it wishes" it cannot "require its employees to work one workweek, such as from Tuesday noon to Tuesday noon, and designate another workweek, such as Monday to Sunday night, for the purposes of calculating overtime compensation."²

The employer subsequently filed a motion for reconsideration, which was granted, and the court re-issued its opinion on April 14, 2011.³ In its re-issued opinion, the court affirmed its prior decision, rejecting the artificial workweek utilized by the employer.⁴ The court’s reasoning, however, was significantly modified. Rather than flatly rejecting the artificial workweek, the court acknowledged that an employer may designate a workweek which differs from the work schedules of the employees if it has a bona fide business reason for doing so, "which does not include the primary objective of avoiding the obligations of overtime."⁵

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