November 22, 2016,
To Whom It May Concern:
I am a labor and employment attorney who represents farm labor contractors, harvesters, growers, and agricultural managers, among other clients. As you are probably aware, AB 1513 requires such employers to make substantial wage payments to former or current employees by December 15, 2016, even if the employer paid the employees in full under the law as it existed in 2012-2015. This letter is directed to your legal counsel from me, to propose a legal challenge to AB 1513. I do not represent your organization and this is not legal advice of any kind. This is an invitation to talk further, with the goal to help the agricultural community in California.
Our theory is that the retroactive application of AB 1513 unlawfully implicates the ex post facto provisions in the California and United States Constitutions and should be opposed, so that California employers can avoid criminal liability for not compensating rest periods at a rate exceeding the state minimum wage during years 2012-2015. The State Labor Commissioner’s application of this law, by retroactively seeking employer payments for the rest periods even when the employer paid minimum wage, or minimum wage plus piece rate, appears untenable to me.
“The ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed[.]” (Weaver v. Graham (1981) 450 U.S. 24, 28.) “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly[.]” (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265.)
AB 1513, effective January 1, 2016, requires employers to compensate their piece-rate employees’ rest and recovery periods at a special rate that exceeds the minimum wage, and, according to the Labor Commissioner, is meant to be applied retroactively, meaning that any employer that did not pay the special rate in years 2012-2015 is liable immediately for the unpaid wages and civil penalties. (Cal. Labor Code Section 226.2.) The Deputy Labor Commissioners have explained to us and our clients that these payments to workers were due, even when generous employers paid workers by the hour and paid an additional piece-rate to employees.
However, the Commissioner’s retroactive application would also trigger the imposition of criminal liability, since an employer’s failure to pay wages within seven days of the end of a pay period is a misdemeanor under Cal. Labor Code Section 215. Thus, employers who compensated rest and recovery periods at the State minimum wage during years 2012-2015, according to the Labor Commissioner, underpaid their piece-rate employees and are now automatically criminally liable.
The Labor Commissioner’s view is that AB 1513 clarified the law as it already existed, i.e., that retroactive application is appropriate since employers should have always known to compensate piece-rate employees’ rest and recovery periods at the special rate. However, our review of the Industrial Welfare Commission’s Wage Orders, the California Labor Code, and the Division of Labor and Standards Enforcement Policies and Interpretations Manual reveals no explicit decision, policy, or regulation requiring the compensation of piece-rate employees’ rest and recovery periods at any rate other than the state minimum wage.
According to the AB 1513 Fact Sheet on the DLSE website, “the legislation is an outgrowth of recent court decisions in Gonzalez v. Downtown LA Motors and Bluford v. Safeway Stores, Inc.” Yet, those decisions stand only for the proposition that California law requires employers to separately compensate piece-rate workers’ rest and recovery periods as “hours worked.” Those case opinions say nothing about the rate at which those rest and recovery periods should be paid and address only piece-rate payments, not wages paid hourly plus piece-rate.
Simply put, a plain reading of the law before AB 1513 was passed indicates that no reasonable person could have known that employers were required to compensate piece-rate employees’ rest and recovery periods above the state minimum wage or at the special rate provided in AB 1513.
Our argument for your consideration is as follows: Because employers had no “opportunity to know what the law [was] and to conform their conduct accordingly,” and because the retroactive application of AB 1513 imposes criminal liability on employers who compensated piece-rate employees’ rest and recovery periods at minimum wage during years 2012-2015, AB 1513 should be declared void under the ex post facto provisions of the California and United States Constitutions.
We have researched current litigation but have found no lawsuits challenging the Labor Commissioner’s interpretation of AB 1513. However, that interpretation which requires imminent payments of wages never contemplated by the employers – and never budgeted or anticipated before now – will crush small agricultural businesses. My clients are too small or have such limited resources that they cannot proceed to contest this unlawful retroactive application in the courts.
If your attorney wants to know more about how AB 1513 is an unconstitutional ex post facto law, I invite your attorney to contact my office.
Thank you for taking the time to read this letter.
Very truly yours,
KAREN J. SLOAT