One of the primary lessons from the recent class action frenzy is the importance of policing off-the-clock work. Nearly every class action lawsuit that we have recently seen has included a claim for off-the-clock work, i.e., early arrival, standing in line, donning and doffing, etc. These claims are very attractive to plaintiffs' attorneys as they are easy to allege and difficult to disprove. In this respect, they can be the ideal glue to certify a class action. Relying on time records is no help, because the work is alleged to have happened before or after the recorded work hours. Thus plaintiffs can easily allege that they worked fifteen to thirty minutes before they signed in for their regular work without any hard evidence.

Attacking these claims is an expensive and labor intensive task as you need to interview and present sworn statements from a significant number of employees who may or may not be keen on participating in a legal proceeding. In addition, if the allegations arise in a class action setting, there are restrictions on communicating with putative class employees so that the employer must be careful and guided by counsel in securing the statements. Judges are also often skeptical of declarations when current employees are asked by their employer to sign a statement in the employer's favor.

If you cannot defend against these claims with time records, what is an employer to do? The answer lies in strict policies and aggressive enforcement. It is absolutely critical that every employer have clear policies prohibiting off-the-clock work. Supervisors must be drilled into policing and preventing any off-the-clock work irrespective of the demands for production. That means immediate discipline for any violation. Employees should not be allowed to linger at the work premises before or after a shift. Loose enforcement of start and end times to meet production can buy the employer a business crippling lawsuit. Clear, regular start and end times are also helpful to the extent that they are possible.

To illustrate the danger of an off-the-clock work claim, consider the following sample scenario (using basic numbers for clarity). Happy Farms employs approximately 300 seasonal employees for a 30 week season every year under Wage Order 14. The employees work an eight hour workday, five days a week, earning an average of $12 per hour and are paid weekly. A former employee files a class action lawsuit alleging off-the-clock-work. This plaintiff alleges that employees were required by the employer to arrive fifteen minutes early before the regular start time to perform exercises and put on gear (gloves, etc.) before harvesting. Accordingly, he claims a minimum wage violation, waiting time penalties and inaccurate wage statement penalties. The exposure for the employer presuming class certification would be:

Minimum wage violation: $607,500 (15 minutes per day plus liquidated damages)

Waiting time penalties: $864,000 ($12 x 8 hour day x 30 days x 300 employees)

Inaccurate Wage Statements: $885,000 ($2950 per employee, max $4000)

Total Liability: $2,356,500

By having and enforcing effective written policies that are provided to the employees, you can provide your attorneys with the means to defend against these claims. In a recent California Court of Appeal decision, an employer prevailed against an employee that was claiming off-the-clock work. Jong v. Kaiser Foundation Health Plan, Inc. (2014) 226 Cal.App.4th 391. The court pointed out that the employee at issue "knew of Kaiser's written policy that [employees] should be clocked in whenever they were working." The court further pointed out that the employee signed a company form attesting that he would not work off-the-clock. Because of the policies and because the employer was not aware of the off-the-clock work, the employer was not liable. In reaching its decision, the Court of Appeal delineated an actual or constructive knowledge standard for employers with respect to off-the-clock work. In other words, the court found that employers are not responsible for unauthorized work performed by the employee unless the employer knew or should have known about the work at issue. Accordingly, employers with strong policies against off-the-clock work can rely on their policies and enforcement to combat these claims.


Counsel to Management: Employers should include clear prohibitions against off-the-clock work in their handbooks and written policies. They should further have employees sign a form acknowledging that they are not allowed to work before or after their start and end time or during rest or meal periods. Employers should further articulate and enforce a policy of recording all work hours. In this respect, supervisors must be well-trained on the paramount importance of keeping all work on the clock. For further guidance on off-the-clock work issues or policies, please contact The Saqui Law Group.

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Governor Signs Ag Overtime Bill

Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers, commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that minimum wage legislation was also passed that will take California to the highest minimum wage as well as legislation forcing California to adopt additional greenhouse gas regulations for businesses in California. California is the only state in the country subject to such regulations. Today’s signing occurred despite numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The message is clear. California simply doesn’t care. These provisions will be phased in over the next few years ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.

In the Beginning As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and effective representation at the local, state and national levels. Having enjoyed such effective representation over the years from the California Cotton Ginners and Growers Associations, these folks yearned for the same representation in the tree nut processing industry. Issues such as air quality, food safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a significant need for an aggressive and dynamic Association to lead the industry into the next decade and beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009. The Western Agricultural Processors Association (WAPA) shares staff and office space with the California Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative and legal issues fall under the purview of this new organization for the tree nut processing industry, which includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA has assembled one of the best and most capable staffs in the industry, and the results are already starting to show Membership The Western Agricultural Processors Association represents facilities involved in the processing of almonds, pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and processors. Associate memberships are limited to any individual or business entity which is not engaged in agricultural processing, but which provides products or services directly related to the agricultural processing industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and insurance brokers. Organization The Western Agricultural Processors Association is governed by a Board of Directors, elected by its membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school for its members focused on safety.In combination with the school, the Association holds a Labor Management Seminar for all of the managers. Consulting Services In researching and considering the concept of forming a new organization, the Boards of Directors for the California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a consulting basis first. The point was to determine the workload from consulting and to determine if there was sufficient interest. In November of 2007, the Association began conducting services under consulting contracts for such services as air quality permits and safety plans.The effort has been so successful that demand has progressed outside the tree nut industry into other agricultural processing facilities, including vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting services to provide offsetting income to help with the expenses of getting the new organization up and running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry, by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).