Skip to main content

Employee Must Show an Employer "Knew of or Should Have Known" of Off the Clock Work in Order to Proceed On Unpaid Wages Claim


Jong v. Kaiser Foundation Health Plan, Inc. - California Court of Appeal, First Appellate District, Division Three 


Facts:  Henry Jong worked as an outpatient pharmacy manager for Kaiser.  After leaving Kaiser, Jong and two other outpatient pharmacy managers brought a class action against Kaiser and alleged they had not been paid for off the clock overtime hours worked, in violation of California Labor Code Section 1194.  The employees alleged that after being reclassified from exempt to non-exempt employees (exempt employees are generally not entitled to overtime pay while non-exempt employees are), they were "forced" to work off the clock overtime hours to keep up with Kasier's demands.  

The trial court granted Kaiser's motion for summary judgment and held that Jong failed to raise a triable issue of fact as to whether Kaiser knew or should have known that he worked overtime hours.  Jong appealed to the Court of Appeal.

Holding:  The Court of Appeal affirmed the lower court's ruling and held that while there was evidence that Jong was criticized for working overtime, there was no evidence that his supervisors instructed him to work off the clock, that Jong had advised his supervisors that he would work off the clock to meet their expectations, or that his supervisors knew he was doing so.  As well, while Jong had shown that Kaiser should have been aware that its pharmacy managers often worked in excess of 50 hours a week because of a previous class action, whether Kaiser was aware that an employee worked off the clock was specific to the circumstances of a particular employee.  

The Court of Appeal further held that Jong had failed to produce any evidence that Kaiser was aware of his off the clock work because Jong disabled the security alarm before clocking in for work.  As a result, Jong failed to present any evidence that Kaiser knew or should have known what he was doing between the time he turned off the alarm and clocked in for work.  

Judgment:  The Court of Appeal affirmed the lower court's ruling and held that Jong failed to show that Kaiser knew or should have known of his off the clock work.  Failure to present evidence of this resulted in Jong's inability to prevail upon his unpaid wages claim.

The Takeaway:  This is a good case for employers to rely upon and show that if they are not aware of an employee's off the clock work, employers should not be liable for the unpaid wages.  If an employer does not know or have reason to know of this off the clock work, it follows that they should not be forced to pay employees for the work done.  

On the other hand, employers cannot bury their heads in the sand and intentionally avoid being aware of an employee who works off the clock.  This type of willful ignorance likely would not allow an employer to escape liability for unpaid wages.  

Majority Opinion Judge:  Judge Pollak

Date:  May 20, 2014

Opinion:  http://www.courts.ca.gov/opinions/documents/A138725.PDF

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

What I've Been Reading This Week

Recently, Equal Employment Opportunity Commission Commissioner, Chai Feldblum, had her re-nomination on the brink, after Utah Republican Senator Mike Lee took steps to block it .  Readers might have heard that late last week, Commissioner Feldblum's re-nomination quietly slipped away and she tweeted out a thank you to supporters and friends, acknowledging that her time at the EEOC was over.  While there has not been much in the way of a further update in regard to that ongoing saga, we wait to see how things will play out at the EEOC, now that it has lost a quorum until additional Commissioners are confirmed by the Senate. For the time being, there are other developments for readers to review this week.  In particular, I call attention to the article on managing a wage & hour audit by the Department of Labor as well as steps an employer can take to better ensure compliance with the ADA. As always, below are a couple articles that caught my eye this week. ...
Post a Comment
Read more

Senator Bernie Sanders To Introduce Bill Requiring Large Corporations To Pay For Federal Assistance Programs

Next week, Vermont Senator Bernie Sanders is set to introduce legislation which would require large employers such as Walmart, Amazon, and McDonald's to fully cover the cost of food stamps, public housing, Medicaid, and other federal assistance programs that their employees receive.  Senator Sanders has stated that the goal is to force these large employers to pay their employees a living wage and cut back on the nearly $150 billion in taxpayer dollars that go toward funding these federal programs every year. As for the specifics, a 100% tax on government benefits received would be imposed on government benefits received by workers at companies with 500 or more employees.  For instance, if a Walmart employee received $500 in food stamps, Walmart would be taxed $500. To call this proposed legislation groundbreaking would be an understatement.  I would expect that Senator Sanders, an Independent that caucuses with Democrats, is going to face an uphill battle gett...
Post a Comment
Read more