Commissioned Employees are Entitled to Separate Pay for Rest Breaks

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Kim Silvers, SPHR-CA, SHRM-SCP


California employers received another surprise court decision requiring commissioned sales employees to be paid separately for their state-required rest breaks.  This decision is somewhat related to earlier decisions (and eventual state law) requiring piece rate workers to be compensated separately for rest breaks. If you have commissioned (inside sales) employees, read on and be prepared to review and edit your current compensation plans.

In Vaquero v. Stoneledge Furniture LLC, two former sales associates filed a class action suit against their former employer, Stoneledge Furniture, claiming that the company’s commission plan did not compensate them correctly for their mandatory rest breaks (minimum 10 minutes for every 4 hours worked, or major fraction thereof).[1] 

From 2009 through March 2014, Stoneledge Furniture paid their sales associates under a commission plan that included a base pay guarantee of at least $12.01 per hour. The base pay was applied toward commission earned (aka a “recoverable draw”).  If the sales associate earned less than $12.01 per hour in commission in any pay period, the company paid him/her a draw against future advanced commissions.  The commission plan noted that “The amount of the draw will be deducted from any future Advanced Commissions, but an employee will always receive at least $12.01 per hour for every hour worked.”  The commission plan did not note or allow separate compensation for non-selling time such as training, meetings or rest breaks.

The trial court sided with the employer agreeing that employees were paid at least $12.01 per hour even if they made no sales in the pay period.  This paid time included rest breaks.  However, the plaintiffs appealed to the CA Court of Appeal and won.  This case has a significant impact on other employers paying commission.

Appellate Court Rules Wage Order No. 7 Requires Employers to Separately Compensate Covered Employees for Rest Periods

The Court of Appeal took another look at the Industrial Wage Order (IWO) 7 language around rest periods.  (IWO 7 applies to the mercantile industry, but this rest period language is very similar in other wage orders.)  The IWO requires that “Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”  When a sales associate’s commission did not exceed the minimum rate in each week, Stoneledge deducted from future paychecks any wages advanced to compensate him/her for hours worked, including rest periods.  The appellate court determined that the “advances or draws against future commissions were not compensation for rest periods because they were not compensation at all. At best they were interest free loans…. Taking back money paid to the employee effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”

The appellate court noted: “…Wage Order No. 7 applies equally to commissioned employees, employees paid by piece rate, or any other compensation system that does not separately account for rest breaks and other nonproductive time.” The court further noted: “The problem with Stoneledge’s compensation system, however, is that the formula it used for determining commissions did not include any component that directly compensated sales associates for rest periods.”   

For now, this ruling will apply to CA trial courts for similar cases.  It is not known if the ruling will be appealed further.

Here are our recommendations if you have commissioned employees:


  1. Ensure your commission plan is in writing and signed by each employee. This is a state law.
  2. Reconsider your use of a recoverable draw. It is risky for a commission plan to pay employees a guaranteed minimum hourly rate as a draw against their future commissions. (This is the kind of plan Stoneledge Furniture had.) The safer path is paying a base hourly rate for all hours worked (production and non-production time such as training, meetings and rest breaks) and a commission on top of that base rate.
  3. Remember that all time in and out should be recorded for hourly employees, including commissioned inside sales.
  4. Piece rate and commissioned employees should be compensated separately for rest break time and have this noted on the itemized wage statement. This rest break pay should not be subject to a draw against commissions.  (Piece rate employees’ itemized wage statements must also note the non-piece work pay rates and time as well.)
  5. Have an employment attorney review your commission pay plan each time you update it to ensure it is defensible.

[1] There was not an issue of whether rest breaks were authorized, permitted or any missed/shorted break premiums were owed.


Check Your New Hire Packet: A New Version of Form I-9 is in Effect

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Susan Breslauer, SPHR-CA, SHRM SCP


By January 22, 2017, all employers should be using the updated Form I-9, dated November 14, 2016, published by the US Citizenship and Immigration Services.  The new form has an expiration date of August 31, 2019.  All employers with one or more employees are required to complete Form I-9 and verify identification documents for newly hired employees by day three of employment.  Hopefully this is not new news to you!  These requirements were established in November 1986 by the Immigration Reform and Control Act (IRCA).  Since 1986, there have been many versions of Form I-9 published. 

Most notably, you may choose to complete the updated Form I-9 manually or via computer.  If you complete the form on the computer, you will find there are drop-down lists and calendars for filling in dates.  The instructions are programmed for each field, and there is quick access to the full instructions.  A handy feature is that you can clear the form and start over if errors are made.

There are several changes in the latest version that your I-9 verifier should be aware of.  Section 1 now asks for “other last names used” instead of “other names used” and it makes certification for certain foreign nationals more efficient.  Other formatting changes have been made, including:  Prompts have been added so that information is entered correctly; the instructions have been separated from the form and include specific instructions for completing each field; and there is an area for additional information so it does not need to be recorded in the margins.  In addition, a supplemental page for the preparer/translator has been added.

If you are a retained client, your Silvers HR Consultant has likely done an I-9 audit as part of your HR Practices Review and you are an ace in I-9 procedures.  Here are some reminders of proper procedures which are still in effect:

  • All new hires must complete Section 1 of Form I-9 by day one of employment.
  • Employers must verify documents and complete Section 2, including the certification portion, no later than day three of employment.
  • One document from List A, or one document from List B and List C, must be reviewed and recorded by the employer in Section 2. (We do not recommend keeping copies unless you are an E-Verify employer.)
  • The date of hire must be entered in Section 2 by the employer. (We find this is often missed).
  • The employer must complete all fields in certification box (section 2), including signing and dating the form.

We recommend appointing one person at each location to verify employment authorization documents for purposes of the Form I-9.  (It doesn’t work to have remote I-9 verifiers since actual I-9 documents, not photocopies, must be examined.)  This person should be trained in I-9 procedures, along with prohibited practices and unlawful types of immigration-related discrimination in hiring.  A handy tool to review is Part Four of the “Handbook for Employers – Guidance for Completing Form I-9”. The Handbook can be found in the Silvers HR Library or at this link.

Remember to keep all I-9s for active employees on file, preferably in a separate binder or file, not in the personnel files.  When an employee separates employment, retain his/her Form I-9 for one year from the termination date or three years from the hire date, whichever is later.

You may find the new Form I-9 in the Silvers HR Library.



More “Ban the Box” Laws; What Employers Need to Know

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Jennifer L. Lippi, J.D., SPHR


There are several local laws and a possible new state law that severely limit employer inquiry into criminal convictions.  On January 22, 2017, Los Angeles became the second city in California, after San Francisco, to adopt a “Ban the Box” ordinance that bars employers from inquiring about a job applicant’s criminal history until later in the hiring process.  Among other things, this means removing the check box questions common on many employment applications that ask, “Have you ever been convicted of a felony?” 

San Francisco’s Fair Chance Ordinance

San Francisco’s Fair Chance Ordinance took effect on August 13, 2014.  In general, the Ordinance prohibits employers from making any inquiry regarding criminal history until after an initial job interview.  Employers may ask about an applicant’s criminal history only after the first job interview or after a conditional offer of employment.  The Ordinance also prohibits employers from at any time inquiring into or taking an adverse action based on any of the following:

  1. An arrest not leading to a conviction;
  2. Participation in or completion of a diversion or a deferral of judgment program;
  3. A conviction that has been judicially dismissed, expunged, or otherwise rendered inoperative;
  4. A juvenile conviction;
  5. A conviction that is over seven years old from the date of sentencing; or
  6. An offense that is other than a felony or a misdemeanor, such as an infraction.

Furthermore, prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with a written notice of their rights under the Ordinance.  The Ordinance also requires that the employer conduct an individualized assessment of the nature of the offense as it relates to the specific position at issue.  The offense may only be considered if it has a “direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”  In making this determination, the employer must consider whether the position “offers the opportunity for the same or a similar offense to occur” and whether “circumstances leading to the conduct for which the person was convicted will reoccur.”  The individualized assessment also requires consideration of the time that has elapsed since the conviction and any evidence of mitigating factors or rehabilitation.

If a San Francisco employer decides to take adverse action based on criminal history information, they must first notify the applicant or employee in writing of the intended decision, and allow the applicant or employee seven (7) days to respond with any evidence of inaccuracy in the information or to describe any evidence of inaccuracy.  The employer must also provide a copy of the background check or criminal conviction report.  Upon receiving such response, the employer must wait an additional reasonable time to reconsider the prospective adverse action in light of the new information.  After the employer has allowed the employee adequate time to respond, the employer may take final adverse action based upon the conviction history, but must notify the employee that the final adverse action was taken because of the conviction history. 

Los Angeles Fair Chance Initiative For Hiring

Los Angeles has taken a different and more rigid approach than San Francisco with its Fair Chance Initiative.  While the San Francisco Ordinance prohibits any type of criminal history inquiry until after the initial job interview, the Los Angeles Ordinance prohibits employers from inquiring about criminal histories until after a conditional offer of employment has been made.

The Los Angeles Ordinance prohibits:

  1. Asking any question on a job application about an applicant’s criminal history;
  2. Asking about or requiring disclosure of an applicant’s criminal history during a job interview; and
  3. Independently searching the internet for criminal conviction history or running a criminal background check before a conditional offer of employment has been made.

The Los Angeles Ordinance has a very specific “Fair Chance Process” that must be followed if an adverse action is taken as a result of an inquiry into criminal history.  Prior to taking any adverse action, the employer must:

  1. Perform a written assessment that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position. At a minimum, the employer must consider the factors identified by the Equal Employment Opportunity Commission (“EEOC”) and any rules or regulations issued by any agency designated with enforcement responsibilities;
  2. Provide the applicant with written notice of the proposed action, a copy of the written assessment, and any other information supporting the employer’s proposed adverse action;
  3. Wait at least five (5) business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the position, in order to give the applicant an opportunity to respond;
  4. Consider the applicant’s additional information or documentation and perform a written reassessment of the proposed adverse action.
  5. If the employer elects to continue with the adverse action after a reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

The San Francisco and Los Angeles Ordinances also contain detailed disclosure, posting, and recordkeeping requirements. 

Assembly Bill 1008 (“AB 1008”)

But wait, there is more.  Don’t do business in San Francisco or Los Angeles?  You may still not be off the hook.  There is a new bill pending in the California legislature that may “Ban the Box” for most employers in California.  AB 1008, as proposed, makes it an unlawful employment practice for an employer to include on any application for employment any question that seeks disclosure of an applicant’s criminal history, or to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment. 

AB 1008 also proposed a “Fair Chance Process.”  An employer that intends to deny an applicant the position based solely or in part because of the applicant’s criminal history must make an individualized assessment of whether the applicant’s conviction history has a direct adverse relationship with the specific duties of the job that justify denying the applicant the position.  In making the assessment, the employer must consider the nature and gravity of the offense or conduct, the time that has passed since the offense, and the nature of the job held or sought.  In making the individualized assessment, employers must be consistent with the EEOC guidelines surrounding conviction records in employment. 

If the employer makes a preliminary decision that the applicant’s criminal history disqualifies him or her from employment, the employer shall notify the applicant of the decision in writing.  The notice must contain all of the following:

  1. Identify the conviction that is the basis for the potential denial or disqualification;
  2. Provide a copy of the conviction history report, if any;
  3. Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide; and
  4. Provide the applicant notice of the right to respond within ten (10) business days.

The applicant has ten (10) days to respond with information that challenges the accuracy of the information in the notice or include mitigation or rehabilitation evidence.  The employer is required to consider the information submitted by the applicant prior to making a final decision. The bill also states that an employer may not disqualify an applicant from employment if they showed evidence of mitigation or rehabilitation.

If an employer makes a final decision to deny employment because of a prior conviction, a second notice must be given that includes all of the following:

  1. The final denial or disqualification;
  2. Any existing procedure the employer has to challenge the decision or request reconsideration;
  3. Whether the applicant may be eligible for other employment or occupation with the employer;
  4. The earliest date the applicant may reapply for a position of employment; and
  5. The right to file a complaint with the Department of Fair Housing and Employment (“DFEH”).

We will continue to monitor the status of AB 1008.  However, in the meantime, if you are located in or do business in San Francisco or Los Angeles, you should revise all job application forms, advertisements, and job postings. Hiring staff should be trained as to what questions may be asked during the initial interview and how to process an individualized assessment when evaluating an applicant’s conviction history.

All Gender Restrooms Are on the Way

Posted on: December 21st, 2016 by Katrina Murphy No Comments

All Gender Restrooms Are on the Way


If you’ve combed through our 2017 employment law update, you’ll find a new bill (Assembly Bill 1732) tucked into the middle of this tome that requires all single-user toilet facilities be identified as an all-gender toilet facilities using proper gender neutral signage. A “single-user toilet” is defined to mean a toilet facility with no more than one water closet (aka flushing toilet) and one urinal, with a door locking mechanism controlled by the user and designated for use by no more than one occupant at a time or for family or assisted use.

The new requirement will apply to any business, place of public accommodation, or state or local government agencies on March 1, 2017. (more…)

What a Year

Posted on: December 21st, 2016 by Katrina Murphy No Comments


What a Year

By Kim Silvers, SPHR-CA, SHRM-SCP


One of our roles as HR consultants is to ensure our clients have resources and knowledge back-up to stay out of employment court. We do a pretty good job of that and I’m proud of the ethical employers we hand pick as our business partners. (You think we take any Tom, Dick, or Harriet? Think again. If you’re a retained client, you’ve been carefully screened by us. Kind of like who Dad allows his daughter to date.) But sometimes even the well-intended employer gets caught up in unfortunate circumstances. We’ve had some doozies this past year; I’ll spare you the details.

It is not my goal to be indispensable and attached at a manager’s elbow on every employment decision. We offer lots of training to aid in the day to day journey with employees. But, the feds and the state of California certainly make it a regular “trip to the fountain” to refresh on the new court cases and laws that overlay just about everything an employer does in our great state. As we wrap up 2016, here’s a quick stroll through some of the highlights with a promise of (likely) more to come next year. (more…)

What is the Difference Between Success and the Status Quo?

Posted on: December 21st, 2016 by Katrina Murphy No Comments

By Cami McLaren

The best way to be successful – really successful – is to plan for your success.  No matter how you define success, you will be vastly more likely to achieve it if you are intentional.  Starting now.  In this article, I will give you some information on how to set yourself up for success in the new year.  Many studies have been done on the nature of success.  Successful people are intentional.  They are purposeful.  They have a clear direction and clear goals.  And they move in alignment with that vision.

As you will see below, there are measures of success that can be created without a clear plan, but they are far lower levels of success.  So jump start your year and make a plan!  Don’t wait for the perfect time.  Now is that time.

We are less than one week from the end of the year. We are, many of us, distracted by the holidays in between here and there. This can cause us to become overwhelmed rather than focused on setting ourselves up for success in the new year.

The end of the calendar year is traditionally a natural breaking point.  It is a place where we take stock and we ask, “What did I accomplish this year?”  And, “What do I want to accomplish next year?”  Different people do this to different degrees.  At one end of the spectrum, some people may not even notice a year has passed and simply move from December 31 to January 1, as if it is just another day.  At the other end of the spectrum, some will consciously close down one year and intentionally open up the next.  They will learn from the last year so that the next year is even better.  As a business coach, I advocate this latter approach.

In 1979, interviewers asked new graduates from the Harvard’s MBA Program and found that:

  • 84% had no specific goals at all
  • 13% had goals but they were not committed to paper
  • 3% had clear, written goals and plans to accomplish them

In 1989, the interviewers again interviewed the graduates of that class.  You can guess the results:

  • The 13% of the class who had goals were earning, on average, twice as much as the 84 percent who had no goals at all.
  • Even more staggering – the three percent who had clear, written goals were earning, on average, ten times as much as the other 97 percent put together.

(Source:  from the book What They Don’t Teach You in the Harvard Business School, by Mark McCormack)

It’s common to move forward without written goals and for many (indeed most according to the Harvard study) with no goals at all.  But the advantage to be gained by having clearly articulated goals — goals you write down and commit to — is unparalleled.

Indeed I have had clients tell me they wrote down their goals for the calendar year and sometimes did not even look at them, and yet accomplished the vast majority of them.

Why is this?

  1. When you decide on something in your mind, your brain starts to look for ways to achieve it. The more specificity and greater detail the outcome is given, the easier it is for your mind to find ways to get it.  And finally, if it is written down, you have taken tangible action in commitment to the goal.
  2. From a purely functional place, the writing down of specific goals means that you will remember them – if you continue to look at them.
  3. Writing down your goals will also give you a measure of accountability. There is a difference between thinking a thing and taking committed action toward that thing.  Writing it down is the first step in action.

“When you are clear, what you want will show up in your life, and only to the extent you are clear.”  (The Passion Test, Attwood.)

As I have mentioned, there are more steps one could take that would make obtaining the goal even more certain.  In our upcoming seminar – Goal Setting for 2017 – we will teach you all these skills and steps.  But just deciding on your outcomes for the year and writing them down will make you vastly more likely to achieve them.

From the Goal-Setting Workshop, you will walk away with:

  • A clear vision of what you want to create in 2017, in all areas of your life
  • A “chunked down” list of milestones for the year to support you in attaining your outcomes for the year
  • An accountability partner (if you want one) to keep you on track to your outcomes

You will learn:

  • A specific tool to guide you in being purposeful not only throughout the year, but in all that you do
  • Why some people are more successful at reaching their goals than others and how to join the ranks of the successful

Register today for our goal setting workshop on January 17, 2017. Do it today and get it on your calendar and you will have laid the groundwork for next year!  You will be 100% more likely to achieve your goals than if you do nothing.

A recent comment from a current client:

“I had a long conversation with [my accountability partner] today and figured out that I am in overwhelm and unfocused.  I also feel like the end of year is soooooo busy and I was feeling drained.  Then, something interesting happened.  I started talking about planning for 2017 and, suddenly, I had more energy.  I felt the shift.  Changing my focus from “this is the end” to “this is the beginning” felt really good.  I’m taking it one day at a time right now.  I’m also going to the gym tonight.”

Signing up for the goals workshop will be your first step in planning for 2017.  When is the time to do that?  Now, of course.


You may reach Cami at:

Cami McLaren
McLaren Coaching
3110 “S” Street
Sacramento, CA 95816

(916) 747-3660

Negativity in the Workplace – Part I – Why So Prevalent?

Posted on: September 28th, 2016 by Katrina Murphy No Comments

By Cami McLaren

This will be a 3-part series on the topic of negativity in the workplace – seeing it for what it is; deciding what to do; and a case study.

Part I – Why it is Contagious

When I teach classes to management, often I hear about the negativity that exists in the workplace.  This can be true no matter the company size or industry.  Law firms, banks, grocery stores – all have the same complaint:  too many complaints.

My first question is always why does it bother you?  And the answers typically include the following:

  • because it makes me feel bad too
  • a little bit of negativity brings everyone down
  • it spreads
  • it’s not fun to work here any more

From this we can see the two basic problems that arise from negativity in the workplace:  (1) it saps your energy, brings you down, makes you not want to do your job; and (2) it is contagious.

Study after study has shown in recent years that employee engagement is pretty low.  (One study states that only 30% of employees are truly engaged in their jobs.)  Our employees don’t really want to be there and don’t often see the point in their jobs.  I think a part of this is the negativity that pervades some workplaces.   But it’s a vicious cycle, isn’t it?  If I don’t like my job, I am going to come across as negative and the more negative I am the more I don’t like my job.

Why is negativity so contagious?  I think it comes back to the concept of rapport.  Rapport is something that comes naturally to human beings.  When I use “rapport” in this context, I am talking about the human desire to be with others like ourselves.  I am talking about the fact that you often are far more comfortable around people with whom you have something in common – gender, beliefs, hobbies, history.  For more in-depth treatment of the concept of rapport – specifically, consciously gaining rapport in order to win people over to your way of thinking and behaving – see other blog posts under “enrollment.”  []

Why is this rapport concept important in talking about negativity in the workplace?  People like to be in rapport.  This means that we naturally seek out others like us.  Look at your friends and notice what you have in common with them.  But it also means we become like the people we are around.  Look at your immediate family, especially your spouse, especially if you have been married for a significant amount of time.  What attitudes do you share, particularly attitudes you hold now that you may not have come into your marriage with?  Do you use similar language?  Do you have similar behaviors?  Do you (gulp) dress alike?

We become like that which we associate with.  This is the bad news and the good news.  Actually, it’s only bad news for you up to the point that you read this.  Because up until this point, you were likely unconscious of the fact that you were becoming like the people around you or maybe, that you had a choice in the matter.  The good news is now you know.  And now that you know, you can do something about it.  Not only can you choose not to get sucked in to the negativity around you, but you can also start to change things. 


Parts 2 and 3 of this article are available at:


For further information or to contact Cami McLaren you may reach her at

Certified Professional Performance Coach


When is Travel Time Paid?

Posted on: September 28th, 2016 by Katrina Murphy No Comments

By Stacey Sommerhauser, SPHR-CA, SHRM- SCP

We often receive questions from CA employers regarding when to pay non-exempt (hourly) employees for travel time.  Here’s a “quick and dirty” reference to begin to understand the complexities of this additional compensation requirement.

With the exception of travel from home to work and back, most travel time is considered work time. However, because traveling does not require the employee to employ his/her skills, pay for travel time may be at a rate of pay that is less than the employee’s normal rate of pay. The employer is permitted to pay the employee as little as the minimum wage for travel pay, subject to the following conditions:

  • Travel time is counted as work time, and thus overtime may be due for travel;
  • Travel time pay, if less than the employee’s normal earnings, is clearly outlined to all employees in advance, preferably as part of your personnel policy; and
  • You reimburse the employee for all out-of-pocket travel expenses in addition to the hourly rate of pay.

If travel time in either direction or travel time plus work time exceeds eight hours in a workday, the employee must receive travel pay at one and one-half times the regular pay rate.  This regular rate of pay overtime calculation can be tedious if the employee is paid at different rates of pay in the pay week.  You may save money paying travel at a lower rate, but the overtime calculation may cause you to rethink that strategy.

The following shows what travel time is and is not considered “work time” for non-exempt employees and if it will be paid:

Travel Time For CA Non-Exempt Employees
Travel to and from regular place of employment at beginning or end of workday Not work time — Not paid
Travel to and from alternate worksite if employee regularly works at one site Employee is paid for work time for the travel time that exceeds the usual home-to-work commute time
Travel to and from worksite at the beginning and end of the day within normal service area for employees who regularly work at different sites Not work time — Not paid
Travel back and forth to places of employment or alternative worksite when required after a day’s work, including air, auto or train time Work time — Paid
Travel to airport, train depot, etc., when in lieu of normal home-to-office commute at beginning or end of day Work time — Paid
Travel to airport, trait depot, etc., when part of workday, i.e., travel from one worksite to another Work time — Paid
Travel as part of a workday, i.e., travel from one worksite to another Work time — Paid
Travel from airport, train depot, etc., to hotel or home after arrival in/from an alternative worksite city Work time — Paid


And if you haven’t had enough – here’s more research from the desk of an HR Nerd….

Exempt employees are not paid beyond their weekly salary for travel time.

When an employee is required to travel to distant work locations, the time spent traveling is compensable.  Even in circumstances where there is some reasonable expectation that the job will require some travel, unreasonable extended travel is usually compensable.  In some circumstances you can deduct an employee’s regular commute time from total travel time (See Silvers HR Travel Time chart attached)  The Department of Labor Standards and Enforcement’s (DLSE) Opinion Letter “Travel Time Pay for Employee with Alternative Worksites” dated April 22, 2003 is a helpful reference.  Page 3 of the Opinion Letter specifically references construction worksites that are in distant locations. 

Additionally, we recently spoke with a Deputy Labor Commissioner who stated the employer will want to consider if the employee has been instructed to use a company vehicle. In those cases, all time spent traveling is compensable time and there is not credit to the employer for the regular commute.  However, if the employee has an option to drive a company vehicle or use his/her personal vehicle, commute in the regular commute area is not compensable. 

In addition, the Department of Labor Standards and Enforcement Manual offers further guidance from the DLSE as it relates to travel time:


46.2 Travel Time. If an employee is required to report to the employer’s business premises before proceeding to an off-premises work site, all of the time from the moment of reporting until the employee is released to proceed directly to his or her home is time subject to the control of the employer, and constitutes hours worked. (O.L. 1994.02.16; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575).

46.3 Extended Travel Time. The California rule requires wages to be paid for all hours the employee is engaged in travel. The state law definition of “hours worked” does not distinguish between hours worked during “normal” working hours or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment or hours worked in connection with a one-day out-of-town assignment. These distinctions, and the treatment of some of this time as non-compensable, are purely creatures of the federal regulations, and are inconsistent with state law. (O.L. 2002.02.21).

46.3.1 Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked.” On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference in order to sightsee), is not compensable. If the employee’s travel from his home to the airport is the same or substantially the same as the distance (and time) between his home and usual place of reporting for work, the travel time would not begin until the employee reached the airport. The employee must be paid for all hours spent between the time he arrives at the airport and the time he arrives at his hotel. No further “travel” hours are incurred after the employee reaches his hotel and is then free to choose the place where he will go. (O.L. 2002.02.21)

46.3.2 Different Pay Rate For Travel Time Permissible. The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel beings. For purposes of determining the regular rate of pay for overtime work under the circumstances where a different rate is applied to travel time, the State of California adopts the “weighted average” method. (See Section 49.2.5 of this Manual; see also O.L. 2002.02.21).

We encourage you to contact your employment attorney or HR consultant when setting up a travel time policy.

© 2016 Silvers HR, LLC     All Rights Reserved.


HR Travel Time

Hold ‘em or Fold ‘em… Are You Ready for the New Exempt Salary Increase?

Posted on: September 28th, 2016 by Katrina Murphy No Comments

By Kim Silvers, SPHR-CA, SHRM-SCP,

Should California employers put the brakes on preparing for the December 1, 2016, new exempt salary increase threshold?

You may have heard that 21 state attorneys general and governors filed a lawsuit against the Department of Labor last week claiming that the new minimum salary changes are unconstitutional. Led by Nevada’s Attorney General, Adam Laxalt, the states claim the Obama Administration has overreached its authority in an attempt to “dictate how state and local governments allocate their budgets and provide service to their citizens and constituents.”

As you’ll recall from several other articles we’ve written leading up to this big event, the recent DOL rule requires that on December 1, 2016 all public and private employers must pay at least $913 per week (or $47,476 annually) for employees classified as exempt from overtime in the executive, administrative or professional classifications. Individuals in these classifications earning less than the new minimum salary must be paid overtime. Estimates are that about 4 million U.S. employees may be affected by the new rules.

California employers must not only pay weekly overtime, but are also required to pay daily overtime for time worked beyond eight hours/day. (There are very few exceptions. Do not assume you’re exempt from this daily overtime rate.) Employers are urged to assess the impact of the new minimum for their current exempt employees and determine if they will raise the employee’s salary to the new minimum or reclassify these employees to non-exempt and begin paying an hourly wage along with overtime. (We addressed several of the options in our spring 2016 HR Wise e-zine and suggest you check it out or call your HR consultant or employment attorney for further discussion.)

In addition, the new DOL rules require an automatic ratchet (that would be a ratchet “up”) in the exempt salary minimum every three years based on an automatic indexing mechanism.

Attorney General Laxalt and the 20 other states 1 (California is not on this bandwagon) are suing the Department of Labor on the grounds that the new rule overrides congressional authority by implementing a minimum-salary threshold that omits the “white-collar exemption”; that it violates the Tenth Amendment by forcing states to pay their workforces a specific amount, indirectly controlling their budgets; and that it violates the Administrative Procedure Act by revising the salary threshold every three years.

So, should California employers delay in hopes of a stay? Burying our collective heads in the sand is not our recommendation. This could be a significant budget adjustment for many employers. Employers should continue to plan and budget for the decisions that may result from these new rules. Although the changes may not be communicated to potentially affected employees early this fall, we’ll have more to base this action on after early November. Hang in there and plan for the impact.

New Exempt Salary Increase



1  Other plaintiffs include Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin, and the governors of Iowa, Maine and New Mexico.

CA Supreme Court Rules on Suitable Seating Provisions for Employees

Posted on: June 29th, 2016 by ksilvers No Comments

In a somewhat nuanced read on whether California employers are required to offer employees seating while performing their jobs, the CA Supreme Court ruled that the nature of the work at a given location must be considered, rather than a holistic view of the entire job. These decisions came as a result of two cases from a CVS Pharmacy clerk/cashier and a bank teller at JPMorgan Chase Bank in Kirby v. CVS Pharmacy , Inc. In both firms, the employers did not provide the employees with seats. The claims were made based on the California Wage Order requirements for “suitable seats” for employees when the “nature of the work reasonably permits the use of seats.” (more…)