166 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com inquiry was “whether the employee’s principal place of work is in California.”943 Thus, to determine if Section 226’s requirements applied to a specific employee who worked in multiple states during a pay period, the first inquiry would be whether the employee worked more than half of their time in any one state. If they did, then the wage statement requirements of that state would apply.944 As for employees who did not primarily work in one state, the Supreme Court stated that one must look to “whether the employee has a definite base of operations in California, in addition to performing at least some work in the state for the employer.”945 If the answer is yes, then Section 226 applies. If the answer is no, then Section 226 does not apply. As an example of a “base of operations,” the Supreme Court noted that “if a pilot or flight attendant has a designated home-base airport, Section 226 would apply if that airport is in California, and not if it is elsewhere.”946 The Supreme Court found that a similar analysis applies when determining whether Labor Code section 204, which requires full payment on a semimonthly basis, applies to a particular employee.947 This is because “section 204 works hand in hand with section 226.”948 Thus, if an employee works most of the time in California during a particular pay period, or is primarily based in California, then Section 204 will apply.949 As for the question of how California’s minimum wage laws apply to workers with jobs that regularly take them in and out of California during the performance of their duties, the Supreme Court left this issue for another day.950 Nevertheless, Ward and Oman provide some welcome clarity regarding application of California’s wage and hour laws to employers who have workers regularly travelling in and out of California during pay periods.951 In 2021, a Ninth Circuit decision took Ward and Oman a step further, extending the California Supreme Court’s holding to California-based employees who worked for a California-based employer. That decision, Bernstein v. Virgin America, Inc., involved a California-based airline’s California-based flight attendants—who either lived in California or were based in California for business purposes.952 The California flight attendants spent 31.5% of their time working within California, and did not spend most of their time working in any one state. Citing these facts, and the airline’s California base, the Ninth Circuit in Bernstein 943 Id. at 320. 944 Id.at 324. 945 Id. 946 Id. 947 Oman v. Delta Air Lines, Inc., 9 Cal. 5th 762, 466 P.3d 325, 332 (2020). 948 Id. 949 Id. 950 The Supreme Court’s analysis assumed, without deciding, that the minimum wage laws applied. The Supreme Court found that Delta’s complicated compensation scheme, which did not pay by the hour but instead paid by “rotation,” which was a given sequence of flights over a day or a period of days that the attendant worked on, did not violate California’s minimum wage laws. Id. at 337. For further discussion, see Section XI, supra. 951 See also Ward v. United Airlines, Inc., 986 F.3d 1234 (9th Cir. 2021) (applying the California Supreme Court’s answers to the certified questions and reversing and remanding the cases back to the district courts). 952 Bernstein v. Virgin Am., Inc., 3 F.4th 1127 (9th Cir. 2021).
RkJQdWJsaXNoZXIy OTkwMTQ4