Labor Commissioner Issues Pay Transparency FAQs Providing Clarity to Employers

As we previously discussed here, beginning January 1, 2023, employers with at least 15 employees will be required to include a pay scale with any job posting. If employers use third-party services to post jobs, they will need to provide those third parties with the pay scale information so that it can be included in the job posting. While employers do not have to volunteer such information to existing employees without prompting, those employees are entitled to the same pay range for their own positions if requested. The requirement to provide pay ranges to existing employees upon request applies to all employers, regardless of size.  

Federal Preemption of California’s Meal and Rest Laws for Truck Drivers Subject to Federal Regulations Applies Retroactively!

Background

In California, Wage Order 9-2001 applies to “all persons employed in the transportation industry,” including property-carrying commercial truck drivers. (Cal. Code Regs., Tit. 8, § 11090(1).) Under the order, an employee working more than five hours a day is entitled to a “meal period of not less than 30 minutes,” and an employee working more than 10 hours in a day is entitled to “a second meal period of not less than 30 minutes.” (Cal. Code Regs., Tit. 8, § 11090(11)(A),(B).). The Wage Order entitles employees to 10-minute rest breaks for every four hours worked throughout the day. (Cal. Code Regs., Tit. 8, § 11090(12)(A).)

New Year, New Minimum Wage

Effective January 1, 2023, California’s minimum wage rate increased to $15.50 per hour (from $15.00) for employers with 26 or more employees and $15.50 per hour (from $14.00) for employers with 25 or fewer employees. Thus, all employers, regardless of size, must pay a minimum wage of at least $15.50 beginning January 1st. Minimum wage adjustments for 2024 and beyond will be made in relation to inflation, as required by California Labor Code section 1182.12, and determined by August 1st of each year.

Employers Take Note – New EEOC Poster Available for Immediate Posting

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) released a new poster that employers are required to display in their workplaces. The “Know Your Rights: Workplace Discrimination is Illegal” poster updates and replaces the previous “Equal Employment Opportunity is the Law” poster. According to the press release, the new poster includes the following changes:  

Rounding Policies Called Further Into Question

In California, it has long been the rule that an employer is entitled to use a rounding policy “if the rounding policy is fair and neutral on its face and ‘it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.’” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 907 (See’s Candy I), quoting 29 C.F.R. § 785.48(b) and citing Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual (2002 rev.) §§ 47.1, 47.2 (DLSE Manual). However, since that ruling in 2012, California courts have slowly chipped away at that rule. Most recently, the California Supreme Court held that rounding is not permitted for purposes of meal breaks. (See Donohue v. AMN Services, LLC, 11 Cal. 5th 58.) Now, a California Court of Appeal has determined a rounding policy that was otherwise neutral on both its face, and in application, to be unlawful. This ruling calls into question whether California employers may continue rounding employees time under any circumstance.