Court Case on CA’s Day of Rest…Finally Rested

California has long had a day of rest requirement.  In fact it has existed long before overtime and minimum wage. It guarantees an employee “one day’s rest therefrom in seven”.  But  which employees and what exactly is one day in seven?  This was really never litigated before the current case of Mendoza v. Nordstrom in which the ruling was just handed down on May 8th.  Rather than my trying to explain the entire court case in a blog, I will, instead, urge you to read the recap of the case as presented by Sheppart Mullin Richter & Hampton’s Brian S. Fong for the Mondaq News Update Service. It is an in-depth look at the ruling and the impact on employers.


Don’t wait for blog posts to find out the latest in payroll news.  Subscribe to Payroll 24/7 today.



EPI Report Shows Employers Steal Up to $8 Billion From Employees’ Wages Annually

A report released on May 10, 2017 by the Economic Policy Institute (EPI) assesses the prevalence and magnitude of one form of wage theft—minimum wage violations. Minimum wage violations is defined in the report as paying a worker an effective hourly rate that is below the legal or binding minimum wage, either state or federal law. The report looked at the 10 most populous U.S. states: California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas. These states were chosen to limit the focus of the report so EPI could carefully account for each state’s individual minimum wage policies and state-specific exemptions to wage and hour laws. Two of the states chosen, California and New York, actually have anti-wage theft laws on the books. The data for these states provides adequate ample sizes and the total workforce in these states accounts for more than half of the entire U.S. workforce. The results of the study are a bit alarming even if you take into account that the measuring of wage theft is challenging and suitable public data sources are limited. The key findings of the report are that:

  • In the 10 most populous states in the country, each year 2.4 million workers covered by state or federal minimum wage laws report being paid less than the applicable minimum wage in their state—approximately 17 percent of the eligible low-wage workforce.
  • The total underpayment of wages to these workers amounts to over $8 billion annually. If the findings for these states are representative for the rest of the country, they suggest that the total wages stolen from workers due to minimum wage violations exceeds $15 billion each year.
  • Workers suffering minimum wage violations are underpaid an average of $64 per week, nearly one-quarter of their weekly earnings. This means that a victim who works year-round is losing, on average, $3,300 per year and receiving only $10,500 in annual wages.
  • Young workers, women, people of color, and immigrant workers are more likely than other workers to report being paid less than the minimum wage, but this is primarily because they are also more likely than other workers to be in low-wage jobs. In general, low-wage workers experience minimum wage violations at high rates across demographic categories. In fact, the majority of workers with reported wages below the minimum wage are over 25 and are native-born U.S. citizens, nearly half are white, more than a quarter have children, and just over half work full time.
  • In the 10 most populous states, workers are most likely to be paid less than the minimum wage in Florida (7.3 percent), Ohio (5.5 percent), and New York (5.0 percent). However, the severity of underpayment is the worst in Pennsylvania and Texas, where the average victim of a minimum wage violation is cheated out of over 30 percent of earned pay.
  • The poverty rate among workers paid less than the minimum wage in these 10 states is over 21 percent—three times the poverty rate for minimum-wage-eligible workers overall. Assuming no change in work hours, if these workers were paid the full wages to which they are entitled, less than 15 percent would be in poverty.

The report gives a full explanation of the background and previous research into the problems.

EPI report


Comma Placement Matters, Especially in Wage Hour Law

As many of us who use Facebook know, the grammar police are constantly posting memes about the proper use of commas. Recently the placing of a comma came into play which cause one employer to have to pay back wages for overtime. The U.S. Court of Appeals for the First Circuit has overturned a federal district court opinion and ruled that dairy company delivery drivers are eligible to receive overtime under Maine’s overtime laws. At issue was Maine Rev. State. Ann. §664(3)(F), which provides an exemption from overtime for those involved in the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of perishable food. The drivers did not dispute that they handled perishable foods, but said that they do not engage in “packing” them, and therefore are eligible to receive overtime. The employer argued that the above provision actually refers to two distinct exempt activities (“packing for shipment,” and ”distribution”), and therefore the exemption from overtime applies to the drivers. The appellate court sided with the drivers. It said that the exemption would have applied to the drivers if the statute had read “packing for shipment, or distribution” rather than “packing for shipment or distribution.” Since the drivers did not pack items for either shipment or distribution, their activities did not come under the statutory exemption [O’Connor v. Oakhurst Dairy, CA1, Dkt. No. 16-1901, 3/13/17].

So watch out for where the commas are placed if you want to avoid penalties!

Get the latest news on overtime rules by subscribing to Payroll 24/7 today!

State vs. Cities: The Wage Hour Fight Continues

Localities such as cities or counties have been enacting their own wage and hour requirements for quite a few years now.  Dozens of cities in California and New Jersey have their own sick leave laws as well as higher than state minimum wages.  New Mexico has local minimum wages as does Washington.  But it seems the state legislators are starting to fight back.  With the assistance of groups such as the American Legislative Exchange Council (ALEC) model bills (draft legislation that legislators may customize and introduce) have passed in several states.  The latest states to pass such legislation are Arkansas and Iowa.  These bill basically forbid the local governments from passing any type of law relating to minimum wage, living minimum rates, employment leave or benefits, hiring practices or any condition of employment that is more generous than the federal or state law.  Whether cities will fight back in the courts, or if they even can, remains to be seen. Miami Beach recently tried to establish its own minimum wage despite Florida having passed its own version of the ALEC legislation.  The court struck down the Miami Beach ordinance. So the fight continues.  Payroll professionals need to monitor local minimum wage and sick leave ordinances to ensure compliance but remember these ordinances can be fleeting if the state has passed the ALEC-style legislation.

Get all the latest on local minimum wage laws by subscribing to Payroll 24/7 new alert service. News you need as payroll professionals when you need it.

School Employees & Overtime: The Latest Blog from Wage and Hour Insights

In addition to my own blog I like to make sure I follow other  well written and accurate blogs that discuss wage and hour law or other payroll related items.  The Wage & Hour Insights blog is one such blog.  I have shared several of them in the past months.  This time the blog addresses a unique situation but still one that is relevant to all payroll professionals.  Do school employees get overtime for occasional extra duty?  Why relevant to all payroll professionals?  Because though the law does give a limited exception to state and local government employers it does not to private sector employers.  So check out today’s blog from Bill Pokorny for government employees.  But also check out his previous blog on the subject for private sector employers. 


Keep up to date with the latest payroll news by subscribing to Payroll 24/7 today for only $149 a year.

In Case You Hadn’t Notice–It’s Election Time Again

The election is coming up fast.  What that means to most employees and employers is questions. Employees might ask themselves “when should I vote?”.  But they might ask their employers “can I have time off to vote?”. Allowing time off to vote is a company policy question in some cases, but other times it is a question of wage and hour law.  Does an employer have to give the employee time off to vote during working hours?  And if they do, is it paid time off?   There actually is no federal law on whether or not an employee must have time off to vote. It is left up to the states to decide.

Vote campaign

And each state has their own rules.  Some states give up to four hours, where other states don’t address the issue at all.  To assist payroll professionals on this topic I have put together a white paper on the voting time off requirements for the states.  The link is below.  The info was compiled through Thomson Reuters. It should prove helpful as it also give the citation to state law.  I have also listed the states that do not address this issue.  I hope you find it useful.




Subscribe to The Payroll Pause for all the latest news and information pertinent to payroll professionals.  Only $149 per year.

The Overtime Battle Rages On!

The battle to stop the new overtime rules from taking effect has begun in earnest. 21 states, including Arizona, Kansas, Oklahoma, Nevada, Texas and Utah, and the U.S. Chamber of Commerce have filed a lawsuit in Texas challenging the Department of Labor’s (DOL) final overtime rules under the Tenth Amendment of the U.S. Constitution and the Administrative Procedures AFlag of Nevada (isolated)ct.   Nevada Attorney General Adam Paul Laxalt led the coalition of states filing the suit. According to the suit the final rule contradicts the statutory text of the exemption, as well as Congressional intent.  The suit also raises the specter of the federal executive depleting state budgets in an effort to impose its policy will on the states.

However the DOL has responded by issuing the following statement by Secretary Tom Perez:  “We are confident in the legality of all aspects of our final overtime rule. It is the result of perez2a comprehensive, inclusive rule-making process. Despite the sound legal and policy footing on which the rule is constructed, the same interests that have stood in the way of middle-class Americans getting paid when they work extra are continuing their obstructionist tactics. Partisan lawsuits filed today by 21 states and the U.S. Chamber of Commerce seek to prevent the Obama administration from making sure a long day’s work is rewarded with fair pay. The overtime rule is designed to restore the intent of the Fair Labor Standards Act, the crown jewel of worker protections in the United States. The crown jewel has lost its luster over the years: in 1975, 62 percent of full time salaried workers had overtime protections based on their pay; today, just 7 percent have those protections – meaning that too few people are getting the overtime that the Fair Labor Standards Act intended. I look forward to vigorously defending our efforts to give more hardworking people a meaningful chance to get by.”

Let’s see where the battle takes us by December 1!

sale-red-keyATTENTION BLOG FOLLOWERS!: To reward my blog followers I am offering a special discount on a year’s subscription to The Payroll Pause.  Only $99 per year (rate lasts as long as you keep your subscription current).  That is a $50 savings!  But act fast as this discount is just for the fall and will expire on October 15th.  Use coupon code X36AK67F3 when checking out to receive the discount.

$7.25 is Now 7 Years Old

An interesting fact, the current federal minimum wage of $7.25 turned seven years old on Sunday, July 24th. But how does our young one compare with the rest of its class?  In other words, is it top of the class, bottom of the class, or floating around in the middle? According to CNN Money the U.S. was ranked 11th out of 27 developed countries that have a nationwide minimum wage.  Australia comes in first, followed by Luxembourg, Belgium,  Ireland, France, Netherlands, New Zealand, Germany, Canada and the United Kingdom. Interestingly enough, Finland, Sweden, Denmark, Norway, Iceland, Austria, Switzerland and Italy are not listed because they have no federal rules on minimum wages.  That does not mean that their workers are low paid. In fact, many of these nations are known for paying relatively high wages because of the strength of unions. So the federal government does not feel the need to intervene to protect workers.

If we took into account the state or local minimum wage rates our ranking would increase since many states as well as local cities and counties have increased the minimum wage far above $7.25 per hour. But you would still have to take into account those states who have no minimum wage such as Alabama or Mississippi or those that are below the federal minimum wage such as Wyoming which is still at $5.15 per hour.  So there are those who are calling for the federal minimum wage to be raised. Historically this is usually a bipartisan issue. Since 1938 when the minimum wage was created it has been raised 10 times under both republican and democratic presidents. It started out at $.25 per hour under FDR, rose to $1.00 per hour under Eisenhower in 1956, to $1.15 an hour under Kennedy, $1.60 an hour under Nixon, $3.35 an hour under Reagan, $3.80 an hour under George H.W. Bush, $5.85 an hour under George W. Bush and finally to its present level of $7.25 under Obama.  But what is amazing is that its buying power has really varied over the years. For example, under Nixon it had the buying power of $9.28 in 1970 if comparing it to 2012 prices. But it has fallen over 25% since then.

So should we increase the minimum wage on the federal level or not?  If yes, by how much? These are questions that will weigh heavy on the upcoming election. But there is wide-spread support. A Hart Research Associate poll in 2015 showed most Americans (75%) support an increase in the federal minimum wage up to $12.50 per hour. 53% of those in the poll identified themselves are registered republicans. In addition, according to the federal Department of Labor, support is high for increasing the minimum wage even among business owners.  A survey of 1,000 executives was conducted by LuntzGlobal which is run by a republican pollster.  The survey results were leaked to a liberal watchdog group called Center for Media and Democracy.  It appears that 80% of respondents supported raising their state’s minimum wage.

So happy 7th birthday to our federal minimum wage!  But will it see 10? Who knows?


I Am Voting…If I Can Get the Time Off

It is finally in full swing…the 2016 presidential election. One candidate is nominated and one is waiting to be nominated.  Not only is this a presidential election year but also we are voting for the entire House and 1/3 of the Senate.  So how does this affect payroll (other than we need to vote, just like anyone else)?  Why time off to vote, of course.  The questions always comes up each election cycle, do I have to give my employees time off to vote?  If I do, then how much time? The answer falls under wage and hour laws.  And as usually happens, it is left up to the individual state to make the regulations. It is amazing to me (a bit on my soapbox) that the largest democracy in the world does not have a federal law requiring employees time off work to vote.  But we don’t, simple as that.  So the employee’s right to have time off to vote depends on where they are voting, in what state.  Some states do not address the issue or have no laws or provisions requiring that an employee get time off to vote.  These include: District of Columbia, Delaware, Florida, Idaho, Indiana, Louisiana,  Maine, Mississippi, Montana, North Carolina, New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia and Vermont.  Connecticut currently does not have a provision but will have effect October 1, 2016.

States that do address the issue usually allow between two and four hours to vote.  The employee usually has to give advance notice to the employer.  However, usually if the employee has sufficient period of time to vote in their off hours, they then do not need to get time off to vote during working hours.  For example Illinois states that “the employee is to get up to two hours if the employee’s working hours begin less than two hours after the polls open and end less than two hours after the polls close”.

There are many websites that give voting rights information but I found one that concentrates just on time off to vote laws.  Check out FindLaw at for all the latest info on giving employees time off to vote.  I decided to blog on this today so my followers will have time to begin research and preparing their voting time procedures for the fall.  We will, of course, be providing a white paper on this topic in the fall to be sure to catch all the latest updates to the time-off rules for the November election.


Subscribe to The Payroll Pause to ensure you receive the latest wage and hour news, including voting time changes.


Minimum Wage: Local vs. State–OH Style

Ohio flag

Local efforts for higher minimum wages are causing lots of concern to state legislatures and governing entities.  The latest round in this battle is in Ohio.   Hamilton County, which includes Cincinnati wants to increase the local minimum wage to $12.20 per hour by a ballot initiative this year.  However, the Ohio Attorney General Mike DeWine states that local minimum wage ordinances violate the state’s constitution and are not permitted.  The current minimum wage in the state is $8.10 per hour.  The group that is seeking the ballot initiative, Cincinnatians for a Stronger Economy plans to see further legal advice.  But it isn’t just Cinncinnati that is looking to increase local minimum wages.  Cleveland, as well, has already announced plans to put a minimum wage increase on the November ballot.  DeWine’s opinion is not binding but it could be used to bolster legal challenges if the voters approve the measure in November.  Employers simply need to wait and see.


payroll pause adSummer sale on The Payroll Pause!  Use this code (57BCA4915F814E8) to receive a 10% discount on a one year’s subscription.  Save $14.90 off the current retail price of $149.  Get all the payroll news you need when you need it right to your desk and get 10% off!  But the sale ends September 7th. So subscribe today!