Effective February 2022, employers in California with more than 25 employees were again required to provide employees with COVID-19 Supplemental Paid Sick Leave due to a COVID-19 related reason (such as to care for oneself, a family member, or if the employee was attending a vaccine appointment). The law was retroactive to January 1, 2022, so covered employees who qualified for leave can request retroactive payment for that leave if it was not already paid by the employer. The law expires on September 30, 2022. This California law provides for varying rates of pay to employees depending on whether the employee is exempt or non-exempt, and depending upon how the employee is paid. There are also caps on the maximum amount paid to an employee, and complicated issues that arise when an employee may utilize other types of paid leave if an employee reaches the maximum amount of supplemental paid sick leave.

California lawmakers and courts continued to revise and clarify a number of employment laws in 2021, and enact new statutes and regulations for 2021. Just a few of the many changes include:

Minimum wage increases for all employers, and salary raises for exempt employees;

Expansion of leave laws granting employees the right to take up to 12 weeks of unpaid leave time for a variety of personal reasons;

Sex harassment training requirements;

Continuing updates on who must be employed as an employee, and who may work as an independent contractor.

Employers must keep pace with these changes because employees have rights to enforce new workplace protections. At Berger, Williams & Reynolds, LLP, we provide expert advice and representation on these and other California employment laws.

In 2018, Tim Williams took over as lead counsel for the firm in Lee v. Dynamex. Originally filed in 2005, the case included two trips to the Court of Appeal and more recently, the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Changing the law in California on the use of employees/independent contractors, the case has far-reaching implications for a wide range of employment laws, including the extent to which workers must be paid wages and business expenses. The firm represented a class of 230 delivery drivers who were mis-classified as independent contractors, and settled the case in 2020 for $6.25 Million.

On February 25, 2021, the California Supreme Court issued an opinion regarding California’s meal period laws. It dramatically changes employers’ obligations in two respects, and reaffirms one key provision.

First, if an employer is using a timekeeping system that “rounds” employee time entries for payroll at the beginning and end of the day, employers are now PROHIBITED from allowing the system to also round employee punches for meal periods. In other words, employers must record that employees have actually clocked out for at least 30 minutes on each day that a meal period is required and taken, and cannot round punches to 30 minutes.

Second, if an employer’s records show that a meal period did not comply with California law, it is presumed the employee is owed a meal period premium payment. An employer can introduce evidence to overcome that presumption, but it is difficult.

But, an employer satisfies the meal period obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. An employer is not obligated to police meal breaks and ensure no work thereafter is performed. There is no meal period violation if an employee voluntarily chooses to work during a meal period after the employer has relieved the employee of all duty. The voluntariness of an employee’s choice matters because an employer may not  undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.

The bottom line is that timekeeping systems must ensure at least 30 minutes of meal period time taken and recorded.

Employment and business litigation firm Berger, Williams & Reynolds, LLP, originally founded in June 1996, continues to achieve favorable results after 25 years in business.

BWR is comprised of partners Harvey Berger, Timothy Williams, and Stephanie Reynolds, Top Employment Lawyers and SuperLawyers. They are supported by associate Ashley Fasano and an excellent support staff. The firm has developed a remarkable reputation for excellence over more than two decades in San Diego and throughout California. The BWR team has recovered more than $100 million in damages for its clients, and successfully defended against claims in excess of $100 million. Its attorneys have extensive experience litigating cases through trial and on appeal, including to the California Supreme Court. The firm’s ability to handle both the prosecution and defense of employment cases uniquely positions its lawyers to fairly and objectively evaluate employment issues and disputes of all kinds, whether in federal and state courts, in arbitration and mediation, and before the federal Department of Labor and the California Division of Labor Standards Enforcement.

Many of the cases BWR handles for employers are “bet the company” cases. Recent successes include defense of eight-figure and nine-figure (over $100 million) class actions. In the past few years partners in the firm have also been responsible for recovery of a seven-figure awards for clients in litigation in court and in arbitration.

BWR is experienced in navigating complex litigation including employment and consumer class actions; federal and California wage and hour issues; federal and state leave law compliance, retaliation, discrimination, and harassment matters; worker classification issues; termination, layoff and discharge issues; executive and shareholder disputes, including severance and separation agreements; USERRA claims; and disputes involving trade secrets, non-compete agreements, change-in-control agreements, and confidential and proprietary information. The firm is also very experienced in drafting C-suite executive and other employment-related contracts. Partners in the firm also routinely counsel employers regarding employment issues and wage and hour issues to prevent and minimize liability, and conduct workplace investigations.

Over the past 25 years our team has been at the forefront of new developments in California employment law, and we firmly believe our experience, integrity, and solutions-oriented approach to litigation set us apart from our competitors. Our commitment to our clients is stronger than ever.

With extensive experience in wage matters involving personal attendants, the partners at Berger, Williams & Reynolds, LLP have recently resolve several cases by employees who claimed to be underpaid for work performed. Early resolution of these cases has enabled the clients to move ahead without the need to engage in extensive litigation and trial preparation.

Following a successful motion for class certification and appeal, Berger, Williams & Reynolds, LLP has secured final approval for a $3,650,000 settlement of the case for over 1,000 consumers who were defrauded into purchasing a $15,000 medical treatment because the company misrepresented its previous patient satisfaction ratings for the treatment in advertisements. Tim Williams argued the original motion on April 18, 2019, and along with Harvey Berger and Stephanie Reynolds and co-counsel, litigated the case for over 5 years and settled it just before trial. Berger, Williams & Reynolds, LLP were appointed as Class Counsel.

In 2018, Tim Williams took over as lead counsel for the firm in Lee v. Dynamex. Originally filed in 2005, the case included two trips to the Court of Appeal and more recently, the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Changing the law in California on the use of employees/independent contractors, the case has far-reaching implications for a wide range of employment laws, including the extent to which workers must be paid wages and business expenses. The firm represented a class of 230 delivery drivers who were mis-classified as independent contractors, and settled the case in 2020 for $6.25 Million.

Representing "servers" who worked at The Brigantine restaurants in San Diego, Tim Williams and Stephanie Reynolds were successful in obtaining an order from a federal court judge to notify other employees about a lawsuit involving alleged illegal tip pooling. The order permitted all servers who worked for any of the 14 Brigantine restaurants since February 22, 2014 to join the lawsuit to pursue their similar claims. A separate motion to certify a larger class of servers was set to be decided by the judge at a later stage of the case. The matter then settled with the assistance of the judge, and the court file reflects the case has concluded with a favorable settlement for employees.

The California Supreme Court recently determined that employees must be paid for tasks they are regularly required to perform for a few minutes before or after their regular work hours.  Troester v. Starbucks involved a class action lawsuit against Starbucks by a shift supervisor who was required, after clocking out each day, to send daily sales data to corporate headquarters, and then to set the store’s alarm, lock the door and walk co-workers to their cars. The supervisor spent four to ten minutes on those tasks each day.

In evaluating whether employers could assert a common defense under the California Labor Code used to excuse not paying for tasks that take less than 10 minutes under the Fair Labor Standards Act, the Supreme Court unanimously rejected a federal standard that allows employers to withhold additional pay.  The Supreme Court held that the “de minimis” federal rule has never been adopted by California lawmakers or labor regulators; instead, the California Labor Code “contemplates that employees will be paid for all work performed.”

This decision will impact how employers conduct their businesses, and can be costly to those companies that employ many hourly workers. California employers must recognize that if they are requiring employees to regularly perform work off the clock, they must pay them even if such tasks do not take more than a few minutes to perform.

An employee claimed he was tricked into accepting job that the employer misrepresented. After being fired, the employee sued the corporation and its two co-founders for fraud, breach of contract, and breach of the covenant of good faith and fair dealing. The employers claimed the employee was at will, and was not owed anything upon termination. A jury found in favor of the employee, which was upheld on appeal. Damages for the case will be well into the six-figure range. This case confirms a long-held legal theory that despite being hired as an at will employee, employers who misrepresent the terms or conditions of employment may be sued for fraudulent acts.

The firm scored a victory for a client in arbitration with a seven-figure recovery. An executive with an employment contract was terminated, but the employer refused to honor a "change in control" provision entitling the client to back wages, stock, and other damages. Berger, Williams & Reynolds, LLP represented the client in discovery and a one-week arbitration hearing, resulting in a ruling for the firm's client.

Defending a 1,000+ employee facility in a class action where the plaintiff demanded more than $100 million in damages, Tim Williams and Stephanie Reynolds worked diligently for 2 years to eliminate claims and reduce potential damages. Their efforts lead to the employer settling the case for 2% of the original demand, and to stay in business to continue to provide services to its community.

Following a voter referendum in June 2016, San Diego adopted a city-wide minimum wage higher than the California minimum wage, and a sick leave law more protective than state standards. Changes affect every business and every employee working in San Diego and will impact the city’s economy for years to come.

Representing a class of service industry workers who were deprived of minimum wage, Tim Williams and Stephanie Reynolds litigated a hard fought case on their behalf for 5 years in northern California. Two weeks before trial, they obtained a significant 7-figure settlement in which the class of nearly 1,000 workers received 100% of their lost wages, plus interest and a measure of penalties, separate from the employer’s payment of legal fees and costs.

On December 22, 2016, the California Supreme Court ruled that employers in California must give their employees 10 minutes of work-free rest breaks every four hours or major fraction thereof, and cannot require them to remain on-call and available for duty.

In Augustus v. ABM Security Services, Inc. (“ABM”), Augustus and others sued ABM alleging that ABM failed to provide guards with uninterrupted, 10-minute rest periods because ABM required its security guards to keep their radios and pagers on during rest breaks and respond to emergencies. The trial court ruled in favor of the guards and concluded that an employer must relieve an employee of all duties during rest breaks, including the obligation to remain on call. The trial court awarded the guards approximately $90 million in damages, interest and penalties. On appeal, the appellate court reversed the trial court’s ruling, and held that on-call rest periods are lawful and, unlike meal periods, there is no requirement that employees be relieved of all duty when on a rest break.

The California Supreme Court reversed the appellate court’s decision, emphasizing that since 1932, California law has required employers to provide employees with rest periods. The Court held that employers must relieve employees of all duties and relinquish control over how employees spend their time during their rest periods. “A rest period, in short, must be a period of rest.” Requiring guards or other employees to remain on call during rest breaks creates “a broad and intrusive degree of control,” that prevents workers from taking a walk, making a phone call or pumping breast milk for a newborn child.  The Court also noted that the state law allows employers to reschedule rest periods when special needs arise, although such circumstances should be “the exception rather than the rule.”

Employer policies and procedures should ensure compliance with California law regarding the timing of rest periods, and that employees are not performing work during their rest breaks.

Harvey C. Berger represented a Vice President of Sales of a mid-sized technology company who went on FMLA leave for cancer surgery and treatment, but was terminated upon returning to work. Despite being rehired by his previous employer only four months later, Harvey was able to settle the case for almost $1 million, two weeks before arbitration was to begin.

Tim Williams and Stephanie Reynolds lead a 2-year battle on behalf of a client who was subject to sex harassment by senior-level executives and whose reports were ignored by human resources personnel. The case resolved after the start of trial for a significant six-figure amount, allowing the client to move forward with a measure of resolution, and causing a major shake-up of the employer’s executive/management team.

Two years of litigation that encompassed tens of thousands of pages of documents, witnesses across California and Arizona, and multiple court motions and hearings on behalf of the employer  was resolved by Tim Williams and Stephanie Reynolds in the last week before trial for a nominal sum. Their efforts to investigate and prepare the case for trial ultimately convinced the plaintiff and counsel that a defense verdict was predictable, and ensured the company was able to get back to business.

In 2015, California lawmakers enacted an expansive set of paid sick leave requirements that will apply to millions of California workers. Paid sick leave is now mandatory for nearly all private employees, and employers are obligated to continue to restore sick leave year after year. Local sick leave laws enacted since 2015 have expanded worker rights and protections.