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Production Worker Sues Sporting Goods Retailer for Overtime, COVID-19 Testing

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California epidemic of petty wage theft

Riverside, CA On March 15, Jose Hernandez Solis filed a California labor lawsuit against The Merchant of Tennis, where he was a non-exempt hourly employee. Hernandez Solis v. The Merchant of Tennis claims that the sporting goods retailer incorrectly calculated Mr. Solis’s overtime and failed to compensate him for time spent undergoing temperature screenings required before each shift. In addition, the Complaint alleges that non-exempt employees were not permitted to take duty-free rest breaks required by the California Labor Code and Wage Order No. 7 and that his employer failed to promptly pay him all wages due at the termination of employment. The California Unfair Competition claims rise out of the other charges. The lawsuit seeks class action or collective status under California and federal law.

Perhaps the most remarkable thing about this lawsuit is how unremarkable these accusations have now become. Among other things, it suggests how common these violations of California labor law are.

Overtime, off-the clock work and rest breaks 

Mr. Hernandez Solis worked as a production employee at The Merchant of Tennis’s Ontario, California facility for two months, from April 2020 to June 2020. On several occasions, he worked overtime hours. However, his employer, somewhat inexplicably, failed to pay him at the correct overtime rate. For example, from May 10 to May 23, his regular rate of pay was $13.25 per hour. His overtime rate should have therefore been $19.875. His overtime pay was, however, calculated at the rate of $19.76, for a total underpayment of approximately $.06. A similar problem occurred during the workweek of May 24 to June 6.

In addition, his employer failed to compensate him for required Covid-19 temperature checks at the beginning of the workday. It also allegedly failed to permit him and other non-exempt employees to take all required duty-free rest periods or to compensate him as required by the California Labor Code at a prescribed premium rate. As a consequence of these failures, the sporting goods retailer failed to pay minimum and overtime wages, keep accurate wage records and pay all wages due on termination.

As far as Mr. Hernandez Solis was concerned, the dollar value of these failures is very small. That may be a strategic choice on the part of some employers. Few hourly workers are willing to pursue lawsuits over miniscule amounts of money. The cumulative effect of underpaying large numbers of workers over an extended period of time can be significant, however.

It may also, in a downward spiral, encourage other employers to do the same in order to compete. This is not just a matter of personal pain, although there is plenty of that for low-wage workers; it’s a public policy problem – hence the California Unfair Competition claims.

California labor law 

California workers need to know their basic labor rights.
  • Under California labor law non-exempt hourly workers, like Mr. Hernandez Solis, are entitled to earn 1.5 times their regular wage when they work more than 8 hours a day. Once they hit 12 hours a day, workers are entitled to twice their regular rate of pay.
  • California workers are also entitled to wages for the time they spend waiting for and undergoing COVID-19 screening if the screening is required as a condition of employment.
  • California's nonexempt workers are also due a 10-minute paid, duty-free, rest break for every four hours worked or major fraction thereof.  Employees who are not offered the opportunity to take a rest break must be paid for one hour of work for each missed rest break.
  • Non-exempt workers are similarly entitled to a 30-minute, duty-free, unpaid meal break for every five hours they work. A second break must be provided after 10 hours but can be waived if the first break was taken. They must be paid for one hour of work for each day that a meal break is not offered.

Is “nickel-and-diming” business as usual?  

This is the policy question. According to the California Labor Commissioner’s Office 2017-2018 fiscal year report, wage theft occurs in California at an alarming rate:

“The US Department of Labor reported in 2014 that the minimum wage law is violated in California 372,000 times per week and that more than one in 10 workers in California is paid less than the minimum wage. An often-cited 2010 study by the UCLA Labor Center found that frontline workers in Los Angeles County lose $26.2 million per week in stolen wages.”

Low-income workers, especially those who work in janitorial services, retail, warehousing, and residential home care are especially vulnerable. Even a minor shortfall can trigger major hardship. These are also the workers least likely to seek legal assistance.
The remedy? The California legislature is clearly alert to the perils of petty, but widespread wage theft. But labor lawsuits, like Mr. Hernandez Solis’s are often the way that this issue is raised to public view.


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