I defended my client’s deposition in a case that will be going to trial in April, a case about piece rate (wages by price per bucket of peas picked). For many decades, although it was never published, everyone understood that each employee’s piece rate earnings each day must be as much or more than the employer would have earned at minimum wage for the hours worked that day.
My client is a farm labor contractor, and to maintain his license, he must take a 9 hour class annually on laws and regulations, and must take a test every 2 years. The study guide gave the example that an employee working 10 hours with a minimum wage of $8/hour must make no less than $80 on piece rate. My client followed this.
In 2013, 2 court of appeal decisions held that additional hourly wages must be paid for rest breaks and “nonproductive” time, and case law applies retroactively. We have been fighting a lawsuit for the hourly on breaks and travel between fields. This is almost verbatim:
Q: Let’s say your employee works 8 hours at an $8/hr minimum wage. That employee earns $64?
Q: And if that employee earns $100 on piece rate for the day, how much does he get paid?
Q: And if the employee makes $50 on the piece rate, how much does he get for the day?
Q: If the employee makes $100 on piece rate, do you are anything for rest breaks or travel between fields?
A: No. We make sure the breaks and travel are recorded as hours worked, so that the people get at least minimum wage.
Q: But you don’t pay them for the breaks and travel, because they aren’t actually picking during those times, right?
A: I don’t understand. In your example, I paid $100. That is more than minimum wage. No one ever got less than minimum wage.
My client is confused and frustrated. If he had paid people hourly at minimum wage, he would not be sued. He has a minimum wage violation because he paid more, without adding a bit more. If he had just paid $64, he would have been fine, but he has a minimum wage violation for paying $100.
California is insane. Under federal law, you take the piece rate earnings, divide by total hours worked in the pay period, and the result must be at or above minimum wage.