Whether or not California’s wage and hour laws apply to work performed out of state generally depends upon the circumstances of employment. In Bernstein v. Virgin America, Inc., 227 F. Supp. 3d 1049 (N.D. Cal. 2017), the court rejected the argument that the “job situs” of the plaintiff was determinative as to whether the California Labor code applied. Instead, the Bernstein court explained that: “[i]nstead of considering principal ‘job situs’ in a vacuum, the California Supreme Court has endorsed a multifaced approach.”[1] Bernstein, 227 F.Supp.3d at 1059-60. The court explained that:
This multi-faceted approach is consistent with California’s strong public policy of protecting its workers. The [California Supreme Court] stressed that the wage and hours laws “serve important policy goals.” . . . . [T]he California Supreme Court explained that “in light of the remedial nature of legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection.
Bernstein, 227 F.Supp.3d at 1059-60.
The California Supreme Court likewise has emphasized the “strong public policy” of requiring employers to defend and indemnify their employees under Labor Code section 2802. See Edwards v. v. Arthur Anderson LLP, 44 Cal.4th 937, 952 (2008) (“California has a strong public policy that favors the indemnification (and defense) of employees by their employers for claims and liabilities resulting from the employees' acts within the course and scope of their employment. Labor Code section 2802 codifies this policy and gives an employee a right to indemnification from his or her employer.”) (internal citations omitted).
The “multifaceted approach” adopted by Bernstein includes consideration of the following: [1] the plaintiff’s residency/contacts with California, [2] the employer’s residency/contacts with California, [3] the employee’s principal “job situs” in California, [4] the employee’s receipt of pay in California, [5] whether the employee’s absence from the state was temporary in nature, and [6] whether “the wrongful contact giving rise to the liability occurred in California.” Bernstein, 227 F. Supp. 3d at 1063; see also id at 1059 (“[T]he Court finds that Plaintiffs’ and Virgin’s significant connections to California are relevant considerations when determining whether to apply California’s wage and hour laws.”)
In Aguilar v. Zep, Inc., 2014 U.S. Dist. LEXIS 120315 (C.D. Cal. 2014), the court held that Labor Code section 2802 also applied to non-California residents that performed work in the state. Id. at *40-41 (“To the extent that Zep attempts to distinguish Sullivan because it dealt with California overtime laws and not Labor Code sections 201, 202, 204, 221, 226, and 2802, that argument fails. While Sullivan addressed California Labor Code section 510, which governs overtime compensation, there is no reason to limit its holding only to overtime cases.”).
Likewise, in Maez v. Chevron Texaco Corp., 2005 U.S. Dist. LEXIS 49193, (N.D. Cal. 2005), a non-resident plaintiff sued his California employer for violation of the California Labor Code. The court denied the defendant’s motion for summary judgment holding that “there are questions of fact regarding where Plaintiff worked and whether he would be considered a California employee for purposes of the wage and hour laws.” Id. at *9. The plaintiff lived in Arizona but he “visited California a couple of times every month for business and . . . his entire customer base was in California.” Id.
Several cases involving airline employees have had mixed results for employees. For example, in Booher v JetBlue Airways Corp., 2017 U.S. Dist. LEXIS 204385 (N.D. Cal. 2017), the parties filed cross-motions for summary judgment on overtime (Cal. Labor Code § 500, et seq), waiting time (Cal. Labor Code § 203), and failure to provide wage statement (Cal. Labor Code § 226) claims. The court ruled in favor of the plaintiffs on the overtime and waiting time claims but against the plaintiffs on the wage statement claims. The Booher court found that the California’s strong public policy in favor of enforcing its wage and hour requirements did not apply to wage statement claims. Booher, 2017 U.S. Dist. LEXIS 204385 at n.2. In addition, in Booher, the plaintiffs sought to recover penalties for improper all wage statements even though the plaintiffs spent 80 to 90 percent of their time working at non-California airports (only 7.3% of Jet Blue’s flights pass through California, and virtually all of Jet Blue’s workforce was located in New York). Id. at * at 19-22.
Vidrio v. United Airlines, 2017 U.S. Dist. LEXIS 40609 (C.D. Cal. 2017) is another Labor Code section 226 wage statement case. Like the court in Booher, the Vidrio court concluded that United Airlines should not be held liable for failure to provide wage statements from United’s headquarters in Illinois for work that was almost entirely performed outside of California. Id. at *13-14.
In Campagna v. Language Line Services, 2012 U.S. Dist. LEXIS 61591 (N.D. Cal. 2012), the court held that Labor Code section 2802 did not require an employer to reimburse non-resident employees for telephone expenses incurred in home offices outside of California. Id. at *12. Notably, the court noted that Labor Code section 2802 might require an employer to reimburse non-resident employees for the same expenses incurred while working in California. Id.
[1] In Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011), the California Supreme Court held that “California's overtime laws apply by their terms to all employment in the state, without reference to the employee's place of residence.” Id. at 1197.