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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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How does the new California labor law amendment 226.2,

Customer Question

How does the new California labor law amendment 226.2, affect me if I drive across state lines? Am I still entitled to the minimum wage rest and recovery rate?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

So long as your place of employment is CA, then your employer is obligated to abide by the labor code as regards wages. And with the new amendment, no matter how much employees are paid per piece, they must also be paid for rest periods and other “nonproductive time.”

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please be so kind as to rate my service to you. That is the only way I am credited for assisting you.

I wish you and yours the best this holiday season,

Doug

Customer: replied 1 year ago.
I drive across country with a partner and we're required to rest 10 hours before driving again. I read somewhere that when I drive across state lines, things like overtime don't apply to my rate of pay.I guess my question is, does the clock start ticking the minute I get onto the truck? Even if I don't start driving? During those nonproductive times and rest periods, am I supposed to be paid the highest minimum wage? Or is there a lesser wage for non-productive times? Will my employer be able to lower my per piece rate (mileage rate) to compensate for the increased wage he needs to pay for my nonproductive times? Will I still be able to receive a per diem rate, or does this take the place of that?
Expert:  LawTalk replied 1 year ago.

I am unable to further assist you in this matter, and I am going to opt out of your question and open this up for other professionals.

Your question is being placed back in the question list for other professionals to see, and to respond to. You do not have to stay online for the question to be active. Should another professional pick it up, you should be alerted by email unless you actively disable this feature.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying other professionals' access to it.

I apologize for any inconvenience and wish you well in your future.

Doug

Expert:  socrateaser replied 1 year ago.

Hello,

Different contributor here. Please permit me to assist. You asked:

I drive across country with a partner and we're required to rest 10 hours before driving again. I read somewhere that when I drive across state lines, things like overtime don't apply to my rate of pay.

A: Interstate commerce transport is controlled by U.S. Department of Transportation regulations, not California law. California overtime law does not apply to you if you routinely transport your loads across state lines -- because you are engaged in interstate commerce.

I guess my question is, does the clock start ticking the minute I get onto the truck? Even if I don't start driving? During those nonproductive times and rest periods, am I supposed to be paid the highest minimum wage?

A: No. Regrettably, a "long-haul" trucker is entitled to a 30-minute, off-duty, unpaid, rest break every 8 hours. No overtime pay or rest break pay is required (though, you can certainly try to negotiate with your employer).

Or is there a lesser wage for non-productive times? Will my employer be able to lower my per piece rate (mileage rate) to compensate for the increased wage he needs to pay for my nonproductive times? Will I still be able to receive a per diem rate, or does this take the place of that?

A: You are trying to imply California labor law into the interstate commerce regulations. California law is preempted, so we can't use it to determine your rights.

I can provide you with a comprehensive guide to your rights as an interstate truck driver, if that would be helpful. Please let me know.

Note: The law is quite complex, so it's difficult to give you a definitive answer. The general answer is that if your truck isn't moving, then you're not entitled to be paid (unless you negotiate a contract where the employer agrees to rules different from those required by federal DOT regulations).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 1 year ago.
Just to make this clear, the new California labor law amendment 226.2 does not apply to me or the way my employer pays me because I drive across country and DOT rules supercede California labor laws? Meaning, he's not required to pay me for non-productive time?
Expert:  socrateaser replied 1 year ago.

That's correct. If you're a long-haul trucker, then none of the great California labor law protections apply to your job. If you want to change that circumstance, then you need to find a job where you drive only within the State of California.

If you want the trucker's employment guide, please let me know.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 1 year ago.

Wait a sec. I've found some case law that may apply to your circumstances. ive me a few minutes to review. Thanks!

Expert:  socrateaser replied 1 year ago.

Well, alright -- this may be your lucky day. I need to reassess your original question.

In Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. Cal. 2014), the U.S. Ninth Circuit Court of Appeals held that federal does not preempt the application of California's meal and rest break laws to truck drivers. Id. at 647.

Given this fact, then the new Cal. Labor Code Section 226.2(a) should apply to you if you are being paid on a "piece rate" basis: "For employees compensated on a piece-rate basis during a pay period, the following shall apply for that pay period: (1) Employees shall be compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation." Which further means that you would be entitled to at least minimum wage for your rest break time.

Note that a rest break must be paid, but a meal break does not, so you may find that your employer tries to characterize all of your rest breaks as meal breaks, and make them at least 20 minutes in duration. I think that it may be a while before an appellate court has an opportunity to review what employers do to try to avoid paying for the benefits provided by the new Section 226.2.

I apologize for my first answer. It was incorrect. I try to research every answer before I write to a customer -- but, I'm human, and I make an occasional error. I hope you won't hold it against me.

Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 1 year ago.
does this mean that while I'm on the road for 5 days going across country, the company has to pay me for all non productive time? While I'm sleeping?Does that also mean that they have to pay me atleast minimim wage during that time or is there a different rate that's applicable?Can they switch my per piece rate then?What about my per diem rate? Will that disappear in exchange for this non productive rate?
Expert:  socrateaser replied 1 year ago.

So does this mean that while I'm on the road for 5 days going across country, the company has to pay me for all non productive time? While I'm sleeping?

A: Nonproductive time: generally yes -- sleep time: no. California courts have consistently provided an exception for sleeping hours, as long as the employee is relieved of all responsibilities connected to employment. Wit respect to nonproductive time, the issue is whether or not the employee is able to engage in personal activities (aka, "waiting to be employed"), or whether the employee is so confined by the requirements of the job, that he or she is effectively being "employed to wait." This is the sort of question that a judge would have to decide. For an example, see: Quezada v. Con-Way Freight, Inc., 2012 WL(###) ###-####at *2, *6 (N.D.Cal.2012) (holding that defendant failed to compensate employees directly for "all hours worked" because employees were paid per mile driven along with an hourly rate for work at defendant's facilities, but not for vehicle inspections, paperwork completion, or the first hour of work).

Does that also mean that they have to pay me at least minimim wage during that time or is there a different rate that's applicable?

A: At least minimum wage.

Can they switch my per piece rate then?

A: I don't understand the question. Please rephrase.

What about my per diem rate? Will that disappear in exchange for this non productive rate?

A: Per diem is not required by law -- only minimum wage is required. So, you could potentially lose the per diem pay.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 1 year ago.
My re-phrased question is can they change/lower my mileage rate to adjust for what they previously paid? For example, if they previously paid me $.22 per mile, can they reduce it to $.15 per mile, but add the hourly rate of $10?
Expert:  socrateaser replied 1 year ago.

No matter how they compute your wages, it cannot be less than minimum wage plus overtime under California law.

By example, $10.00 per hour (California minimum wage, effective Jan 1, 2016), divided by 60 miles (per hour) equals $0.1667 per mile. I don't know how many miles you cover per hour, but you can do the calculation. The employer can't reduce your per mile pay very far, especially as after eight hours you're supposed to be paid time and one half.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 1 year ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer -- otherwise I receive nothing for my efforts in your behalf.

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