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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33555
Experience:  Retired (mostly)
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Is there any consistent wage requirements for spa workers such

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Is there any consistent wage requirements for spa workers such as Massage Therapists (in CA)? It has been typical at all the spas I have worked as an employee, not IC, that you are paid per client/service on a flat rate or commission basis. You work in shifts and are required to be there during the hours of your shift without separate pay as long as your weekly average is more than minimum wage. Most spas do not make you do too much on your non-commissioned hours but be on the premises, however the place I am now does require you to give free demonstrations of massage or products when you do not have a client. It is not encouraged, it is forced. Is this against labor code? Especially given new litigations (Gonzalez vs. Downtown LA motors; Balasanyan vs. Nordstrom). Should we be paid for any additional duties required or waiting time or both?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  socrateaser replied 10 months ago.
Hello,

The rules concerning reporting/on call time have remained consistent for over the past 60 years.

Under both federal and California law, on-call waiting time is compensable if it is spent primarily for the benefit of the employer and its business, which depends on two considerations: (1) the parties' agreement, and (2) the degree to which the employee is free to engage in personal activities. Gomez v. Lincare, Inc. (2009) 173 CA4th 508, 522 (adopting test set forth in Owens v. Local No. 169, Ass'n of Western Pulp & Paper Workers (9th Cir. 1992) 971 F2d 347; Seymore v. Metson Marine, Inc. (2011) 194 CA4th 361, 374.

If you are being forced to perform activities which benefit the employer during time where you are purportedly "on call," then you are not on call, and you are entitled to be paid -- period, end of story.

The only exception would be where you are considered exempt from the overtime laws. If you are considered a professional, and you are earning at least $2,733.33 per month, then you are exempt, and the employer can demand whatever it wants of you during your time at work. See IWC Order #4-2001 1(A)(3)(d).

Please let me know if I my answer is helpful and if I can provide further assistance.

And, thanks for using justanswer.com!
Customer: replied 10 months ago.


But under federal laws they were allowing you to average out your commissioned pay weekly. CA new litigations is making that seem like that is not okay. No spa pays for waiting or on call time. Only if your commissioned pay did not equal minimum wage at the end of the week. If I have one client, one hour massage and get $18 for it, that is all I get for that day even if I am there 6 hours and I am doing additional work. As long as by the end of the week, I made at least minimum wage for all hours clocked, it has been allowed. We are never paid separate waiting/on-call time. Just commission. Given new litigations in CA, what can they make us do during non-commissioned hours?

Expert:  socrateaser replied 10 months ago.
The following summary is from the Lexisnexis legal research data service:

  • The California Supreme Court recently voted 6-1 to deny Downtown LA Motors’ petition for review in Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal. App. 4th 36. By declining review, the California Supreme Court confirmed that technicians must be paid a separate minimum hourly wage for time spent waiting between vehicle repairs or performing other non-repair tasks. The Court’s Decision validated a continuing trend of strict liability for wage and hour violations.

 

The Balasanyan vs. Nordstrom, 13 F.Supp.2d 1001 (2012) stands for the identical proposition as does Gonzalez, except that Balassanyan is a federal court decision which instructs that California law, as more protective of employee rights than federal law, controls.

What this all means, in plain English, is that you are entitled to the job rate for each massage, and minimum wage while waiting to perform the next massage.

Hope this helps.
Customer: replied 10 months ago.


And how do we enforce this? If they are insisting that they can make us do additional work without separate pay, what are our rights in refusal? Most of us would not even expect "waiting time" pay if we are just waiting for the next appointment, as no spas pay that. Apparently, the industry would need to catch up as they just make sure your weekly pay averages to minimum wage. BUT the fact that they DO require work during those hours is the point of contention. I'm not sure what will need to happen for spas to know that they have to pay for the time in between

Expert:  socrateaser replied 10 months ago.
I don't see your issue as very difficult, either to prove in court, or to prevent employer retaliation. File a wage claim with the DLSE. If the employer were to suddenly reduce your massage job rate to cover your interim minimum wage pay, that would be retaliation under Labor Code 1102.5, and you would have a new and entirely separate lawsuit for the damages.

In short, based on your allegations, I don't see how you can lose this case.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33555
Experience: Retired (mostly)
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