Kao v. Holiday

A foreign national who was invited to the US to work for defendant was not an “intern” or “trainee” during the 11 months he worked before securing a green card, because the work he did consisted of typical work tasks rather than education; so he was entitled to minimum wages under both federal and state law during this period.   A foreign national who was invited to the US to work for a travel agency was not an “intern” or “trainee” during the 11 months he worked before securing a green card.  The work he did was not similar to an educational environment but were typical work tasks.  So he was entitled to minimum wages under both federal and state law during this period.  After he secured a green card, plaintiff was not an exempt administrative employee because he did not earn the minimum wage necessary for exempt status—$455/week under the FLSA or twice minimum wage for California law purposes.  For purposes of calculating the pay received for this purpose, only cash paid the employee counts; non-monetary benefits such as free room and board are not considered.  The employer also was liable for failing to give the plaintiff itemized pay stubs showing hourly wage and hours worked.  The violation was “intentional” for purposes of assessing penalties of up to $4,000 total because the employer was aware of the factual predicate underlying the violation.  Finally, the employer was liable for waiting time penalties because it delayed paying plaintiff until the end of the normal pay period rather than, as legally required, paying him final pay the day of his termination.

California Court of Appeal, First District, Division 3 (Pollak, J.); June 15, 2017; 12 Cal. App. 5th 947

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