Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 211 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.1017 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.”1018 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.”1019 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.1020 This is because “section 204 works hand in hand with section 226.”1021 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.1022 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.1023 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.1024 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.1025 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 held that California law on overtime, breaks, and wage statements applied to the flight attendants. Bernstein couched its holding in the facts before it—employees for a California-based company who spent a significant percentage of their time in California and less than 50% of their time in any other state. Nevertheless, Bernstein 1017 Id.at 324. 1018 Id. 1019 Id. 1020 Oman v. Delta Air Lines, Inc., 9 Cal. 5th 762, 466 P.3d 325, 332 (2020). 1021 Id. 1022 Id. 1023 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. 1024 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). 1025 Bernstein v. Virgin Am., Inc., 3 F.4th 1127 (9th Cir. 2021).
RkJQdWJsaXNoZXIy OTkwMTQ4