Michael Walsh, of course, is the author of the top California wage and hour blog, Wage Law.
When both sides filed petitions for rehearing, however, the Ninth Circuit backpedaled. In February it withdrew its opinion in Sullivan II [Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)] and certified three questions to the California Supreme Court. First, does state overtime law apply to out-of-state residents who work for a California company inside the state? Second, if state law does apply, can plaintiffs make a section 17200 claim? And third, if a California employer sets policies that violate the FLSA for its out-of-state workers, does a section 17200 claim apply to the federal violation for those employees no matter where they work? (See Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. 2009).)
Lawyers on both sides of the issue say the most significant question is whether section 17200 applies to employees hired by California companies but who work in other states. If the answer is yes, "There could even suddenly be a private right of action under the [federal] prevailing wage statute," says Michael J. Walsh, an employment law specialist with Walsh & Walsh in Irvine who represents employees. Currently, he adds, only the Department of Labor can sue to recover under the prevailing wage provisions of the Davis-Bacon Act, which sets minimum wages on federal projects.