California employers are once again left with uncertainty regarding the Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual following a California Supreme Court ruling earlier this month.
The state high court’s March 5 ruling in Alvarado v. Dart Container Corporation of California dealt mainly with how an employer must calculate overtime compensation for an employee who earns both an hourly rate and a flat sum nondiscretionary bonus.
In its analysis, the California Supreme Court also provided lengthy discussion on whether the DLSE’s manual was binding authority on the courts. The court concluded that the DLSE Enforcement Manual is a void underground regulation and not entitled to any deference. However, the court held that it still could consider the DLSE’s interpretation if the court was independently persuaded that the interpretation was ultimately correct.
In this case, the court was persuaded and adopted the DLSE’s method of calculating overtime on flat sum bonuses. The DLSE’s method was more favorable to the plaintiff than the federal standard used by the employer.
This is not the first time that the California Supreme Court has opined about the validity of the DLSE manual. More than two decades ago, the California Supreme Court discussed the legitimacy of the DLSE manual in Tidewater Marine Western, Inc. v. Bradshaw (December 19, 1996).
In Tidewater, the court was tasked with deciding whether the DLSE manual constituted regulations within the meaning of the Administrative Procedure Act (APA).
If a policy constitutes a regulation under the APA, it must follow specific protocols to be adopted. The APA outlines a technical process that requires public participation to “ensure that those persons or entities whom a regulation will affect have a voice in its creation as well as notice of the law’s requirements so that they can conform their conduct accordingly.”
If a regulation is not properly adopted per the APA requirements, it will be deemed unlawful. Notably, the DLSE manual has never been adopted through the APA process.
Procedures Not Identical
Although the Labor Code does include procedural protections for adopting some regulations “analogous to those in the APA,” the procedures are not identical to the APA. The procedures also apply only to the Industrial Welfare Commission and not the DLSE manual.
Ultimately, the Tidewater court held that because the DLSE manual provided interpretation of the law itself in its policy manual, the manual is actually regulatory in nature. And since “[n]o state agency shall issue, utilize, enforce, or attempt to enforce … a regulation” without complying with the APA’s notice and comment provisions, the DLSE manual was found to be a void underground regulation.
The Tidewater court went on to say that the DLSE manual is simply “one among several tools available to the court,” stating that “[d]epending on the context, it may be helpful, enlightening, even convincing,” or “[i]t may sometimes be of little worth.”
So, where does this leave employers? Employers are still in the same position they have been in for decades. Tidewater and now Alvarado v. Dart have unfortunately not changed a thing. The DLSE will continue to interpret and enforce state labor laws and employers still will not know in advance whether the courts will uphold the DLSE’s interpretations — potentially subjecting an employer to a retroactive interpretation and penalties and/or damages, as seen in Alvarado v. Dart.
Businesses need more certainty that they’re correctly applying the law and shouldn’t be left to guess. For now, employers should still rely on legal counsel when making difficult employment decisions and should assume that the courts will continue to utilize the DLSE manual as “one among several tools available to the court” when interpreting California law.