California Superior Court/DPA

As we all know the California Superior Court ruled that the DPA has the
right to instruct the Controller to reduce California Employees’ salaries to federal minimum wage. After reading the ruling I decided to share a few points from the aforementioned ruling, a few points of interest from White v. Davis, (California Supreme Court 2003) and a letter written to Schwarzenegger from the Controller in 2008.
So we know the DPA can tell the Controller what to do, but as outlined on pages 22-23 of Friday’s ruling, the Controller’s noncompliance with the court order could be excusable if unfeasibility can be proven. The order reads in part:
"Although the judgment contains no declaration on the issue, the Controller challenges the trial court’s rejection of his claim that it would be technologically impossible/unfeasible to do what the DPA asked. We question the Controller’s claim that the trial court should not have ruled on this defense without a full evidentiary hearing, as he requested. The Controller did not ask to call witnesses or submit any further evidence in the trial court. In any event, even assuming for the sake of argument that he submitted sufficient evidence of unfeasibility, reversal of the judgment would not be warranted, because nothing in the judgment reflects any prejudice from an erroneous evidentiary ruling on feasibility. While unfeasibility would arguably excuse the Controller from the declaratory judgment to comply with White v. Davis, we have explained that aspect of the judgment was superfluous. We decline to consider the feasibility issue, because it involves variables that may or may not recur in the future, depending on the content of any future pay letter by DPA, and the state of the evidence in any future litigation. We will not speculate as to the future capabilities of the payroll system that will be in place at the time of future budget impasses."

Now what… Likelihood that Chiang fails to submit an appeal to the State Supreme Court and completely reverses his intentions on implementing White v. Davis FLSA requirements is very slim at best.

First let me say the rumor that the State has to pay full base salary if you work any overtime at all in a pay period is absolutely TRUE. Supported by White v. Davis, Supreme Court, (which supersedes Superior Court). In part the ruling stated:

"Accordingly, we conclude that, under Biggs, the state is required to comply with the FLSA during a budget impasse, but that the state satisfies the requirements of the FLSA by paying nonexempt state employees (who do not work overtime) at the minimum wage rate for the straight-time hours (that is, non-overtime hours) worked by those employees during the pay period. For nonexempt employees who do not work overtime, the FLSA does not require the prompt payment of full salary.

By contrast, under the applicable federal regulation (29 C.F.R. § 778.315 (2002)), whenever a nonexempt employee works overtime, the FLSA requires the employer to pay the employee his or her full regular salary for the employee's straight time as well as at least one and one-half times the employee's regular salary for overtime hours worked. (See Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 153 [73 L. Ed. 2d 664, 102 S. Ct. 3014]"


This is even reaffirmed in the recent ruling of the Superior Court on page 6 and 7 for those who have not downloaded it yet:


"the State is obligated during a budget impasse to comply with the Fair Labor Standards Act or FLSA (29 U.S.C. § 201 et seq.), which generally applies to state employees (29 U.S.C. § 203(d), (e)(2)(C), (x)), and requires the State timely to pay the federally-mandated minimum wage rate to nonexempt employees who do not work overtime and timely to pay full salary plus overtime to nonexempt employees who do work overtime. (White v. Davis, supra, 30 Cal.4th at pp. 574-579.)"
The reason……
"Full payment is required for overtime workers (29 C.F.R. § 778.315) because otherwise an employer could effectively eliminate the premium paid for overtime by reducing straight time wages. (White v. Davis, supra, 30 Cal.4th at pp. 577-578.)"

Here’s the kicker, the unions that broke down and got on the Governor’s leg think they are immune from minimum wage…….. Read a paragraph from a letter from Chiang to Schwarzenegger in July of 2008 when Schwarzenegger tried to reduce everyone’s wage EXCEPT for CAHP and CDF….


"...it appears as though your Order, while purporting to require compliance with the White decision, is actually inapposite of your reading of that decision. On one hand, you incorrectly indicate that there exists no authority to pay employees not working overtime more than the minimum wage and then, on the other hand, purport to authorize full pay to certain classes of employees. If your reading of the case is correct, then my office cannot make exceptions for those public employees who are engaged in "services and functions of state government deemed critical and exempt." In other words, your reading of the court conclusion in White would mean I do not have authority to pay full wages to any FLSA-covered employee, including the firefighters on the front line in Butte County, the peace officers who patrol our streets and any other employee dedicated to "preserve and protect human life and safety." Your assertion that I do not have the authority to pay some FLSA workers their full pay, but do for others, is not supported by the Supreme Court ruling in White. I either have the authority to only pay minimum wage, or I do not."
(John Chiang, 2008)


The Legislation CANNOT address appropriation bills for the upcoming year during an impasse, its not allowed.. Their contract cannot be ratified during an impasse. So everyone is going to get hit, its all or nothing (except those whom work overtime)..

You know the State is going to make mistakes during this process…And if they do we are entitled to treble charges… Basically every dollar they mistakenly shorten your check you are entitled to that exact dollar amount in back pay…. PLUS an equal amount in liquid damages….. aka …DOUBLE YOUR MONIES OWED…..

Bottom Line…

DPA can tell the Controller to pay us minimum wage…
The Controller can be excused from not following the order if he can prove unfeasibility.
If he must, then all employees (even the CHP) are subject to the order (per the courts)
Work a little OT during the pay period and the state must pay your full wages.. Period!
If they make mistakes, and we know they will, we will be entitled to treble charges.

This rough draft was put together, by Sergeant Spinney, for those that don’t know his spouse works for a very high profile law firm in Los Angeles. He obtained the legal briefs utilizing a Law program. While we aren’t lawyers, this seems to be common sense, findings.
I HOPE OUR CCPOA LAWYERS AGREE AND PURSUIT OUR FINDINGS!

Sgt. D Lopez