Well, the Ninth Circuit Court recently ruled in Sullivan v. Oracle Corp, that the California Labor Code provides the same protections for non-California residents who perform work here and then withdrew their decision! They have since asked the California Supreme Court to decide the question. They have agreed to do it but not until later this year.
Because this matter is unresolved, California employers who have employees who occasionally perform work in California, but reside and primarily work in other states need to do the following:
- Consider tracking the hours worked by nonexempt nonresident employees;
- Consider paying nonresident nonexempt employees daily overtime and double-time if applicable;
- Conduct or have us conduct an audit so that you know how many overtime and double-time hours may have been worked;
- Make sure you have properly classified these nonresident workers as either exempt or nonexempt;
- If you choose not to pay these individuals overtime and want to wait for the court to decide then make sure you properly track the hours and create an internal memo that you are not paying them because of the ambiguity in the law. This will help against a claim for waiting time penalties.
As we all know, the cash cow for attorneys right now are wage and hour claims. You must make sure that you are following all of the guidelines on the Inustrial Welfare Commission Orders for your particular industry. If you are not sure, and what us to come in and do a quick audit specifically taylored for wage and hour, then let us know. It will only take about thirty minutes or so. The cost is nominal but the results are far reaching. Employers are getting so many claims from laid off employees who now want to argue that they did not get all of their breaks and lunches. Some of the claims that I have handled are ridiculous while others do have some merit. We cannot take this area of the law for granted. As you can see from the beginning of this article, even the Ninth Court Circuit of Appeals is confused by California law!
Finally, I know you guys must get tired of hearing me preach about wage & hour but as you can see it continues to be a major issue.