Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 229 calculate extra hour of pay the same way the employer would calculate the regular rate for overtime purposes . 296 Then, pouring salt into the employer wound it had just created, the Supreme Court held that its Ferra decision applies retroactivel y. 297 Must the pay be recorded in wage statements? Is the extra hour of pay something that employers must record in the wage statement (see § 16.3)? One might think not, as the extra hour of pay is not truly wages “earned” and does not represent “hours worked,” and thus logically does not fall within a category of the items that the wage statement must include. Indeed, in 2019, the Court of Appeal held in Naranjo v. Spectrum Security Services, Inc., that “unpaid premium wages for meal break violations do not entitle employees to additional remedies” under Section 226 if their “pay statements during the course of the violations include the wages earned for on-duty meal breaks, but not the unpaid premium wages. ” 298 But then the California Supreme Court struck again. Its 2022 decision in Naranjo held that both paid and unpaid meal premium pay must be reported as “wages earned.” (See § 16.3.) 7.11 Suitable Seats and Comfortable Temperatures Most California wage orders require employers to provide employees “with suitable seats when the nature of the work reasonably permits the use of seats. ” 299 T he relevant provision has two independent parts: Sections 14(A) and 14(B): 14(A) requires that seats be provided when the nature of the work reasonably permits, while 14(B) requires that seats be placed nearby for use when the employees “are not engaged in the active duties of their employment.” The wage order does not authorize any monetary remedy, but a Labor Code provision forbids employment conditions prohibited by a wage order , 300 and the PAGA statute empowers employees who experience Labor Code violations to seek civil penalties of $100 or $200 per employee, per pay period (see §§ 5.15, 7.25). Plaintiffs’ lawyers have invoked this once-obscure seating rule in representative actions against retailers, grocery stores, banks, hotels, pharmacies, warehouses, and other employers whose employees often must work while standing. 7.11.1 Early decisions Until 2009, no published decision had addressed a seating claim. In 2005, in Hamilton v. San Francisco Hilto n , 301 a trial court rejected the seating claim of a guest service agent who challenged a hotel’s requirement to stand at the front desk. The trial court granted the hotel summary judgment because (1) standing and continual mobility throughout the front office area were essential functions of the job and (2) seated employees could not safely use a computer, fit their knees and legs in the confined workspace, or open a cash drawer. Further, the hotel could reasonably decide that guest service agents should stand to serve guests—a business judgment about image and brand that a court should not “second guess.” In 2009, however, a federal district judge in San Francisco breathed new life into seating claims, ruling that a store cashier could pursue such a claim . 302 A nd then, in 2010, two California appellate courts recognized the viability of seating claims . 303 I n 2013, the Ninth Circuit further enlivened seating claims by holding that employees need not request a seat to trigger their employer’s duty to provide one . 304 But other aspects of the employer’s duty to provide a seat remained unsettled. 7.11.2 The California Supreme Court’s pro-employee decision in Kilby In 2013 the Ninth Circuit, hearing consolidated appeals, asked the California Supreme Court to resolve these issues of first impression : 305 (1) Does the phrase “nature of the work” refer to an individual task performed during the workday, or does “nature of the work” require a holistic look at the entire range of duties? And if the holistic approach applies,