Meal and Rest Breaks - Revisited

With July beginning, now is a perfect time for employers to review their meal and rest break policies. While readers may feel like they understand these regulations better than most non-employment attorneys, given the high penalties associated with violations, and the California Supreme Court’s ruling in April that the payments for violations are “wages,” increasing the statute of limitations periods up to four years, it is well worth it for employers to revisit these issues periodically to ensure compliance.

Below are excerpts from the DLSE’s website providing answers to frequently asked questions about employer’s obligations to provide meal and rest breaks.

Meal Breaks:

Q. What are the basic requirements for meal periods under California law?

A. Under California law (IWC Orders and Labor Code Section 512), employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for employees in the motion picture industry covered by IWC Order 12-2001).
Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay. An "on duty" meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

Q. Is it permissible if I choose to work through my meal period so that I can leave my job 30 minutes early?

A. No, working through your meal period does not entitle you to leave work early prior to your scheduled quitting time. In order for an "on duty" meal period to be permitted under the Industrial Welfare Commission Wage Orders, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time.

Q. Can my employer require that I stay on its premises during my meal period?

A. Yes, your employer can require that you remain on its premises during your meal period, even if you are relieved of all work duties. However if that occurs, you are being denied your time for your own purposes and in effect remain under the employer's control and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to the Industrial Welfare Commission Wage Orders, if you are required to eat on the premises, a suitable place for that purpose must be designated. "Suitable" means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.

Rest Breaks:

Q. What are the basic requirements for rest periods under California law?

A. California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must be provided with a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer fails to provide an employee a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.

Q. Must the rest periods always be in the middle of each four-hour work period?

A. Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.

Q. Is it permissible if I choose to work through both of my rest periods so that I can leave my job 20 minutes early?

A. No, working through your rest period does not entitle you to leave work early or arrive late.

Q. Can my employer require that I stay on the work premises during my rest period?

A. Yes, your employer can require that you stay on the premises during your rest break. Since you are being compensated for the time during your rest period, your employer can require that you remain on its premises. And under most situations, the employer is required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.

Q. Can I have additional rest breaks if I am a smoker?

A. No, under California law rest period time is based on the total hours worked daily, and only one ten-minute rest period need be authorized for every four hours of work or major fraction thereof.

Q. When I need to use the toilet facilities during my work period does that count as my ten minute rest break?

No, the 10-minute rest period is not designed to be exclusively for use of toilet facilities as evidenced by the fact that the Industrial Welfare Commission requires suitable resting facilities be in an area "separate from toilet rooms." The intent of the Industrial Welfare Commission regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. This conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms And Resting Facilities, which requires that "Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours."

Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station; and, it does not indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.

"English-only" Policies In The Workplace

Q: Can an employer implement an “English-only” policy in the workplace?

A: Generally speaking, no. California Government Code section 12951 provides that an employer can only implement or enforce a policy that limits or prohibits the use of any language in the workplace unless:
1.The language restriction is justified as a business necessity; and
2.The employer notifies the employees of the circumstances and the time when the language restriction is required to be observed, and the consequences of violating the restriction.
Business necessity is defined by Government Code section 12951 as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.” Companies should not consider implementing “English-only” policies unless they can point to a legitimate safety reason for the restriction.

Tips On Litigation

Mike Dillon, a General Counsel and Corporate Secretary for Sun Microsystems, Inc. has some great thoughts about litigation posted on his blog, The Legal Thing.  He notes:

No. 1 - You only litigate when you have an important interest to protect. Litigation is costly. Incredibly costly. But it is not the expense that is the real issue, it's the diversion of resources. Time employees spend reviewing e-mails and documents, educating lawyers and preparing for depositions is time away from the business. That's the real cost of litigation.

No. 2 - A non-judicial resolution is almost always preferable. When you file a complaint, you are turning over resolution of an issue to a third party - be it a judge, arbitrator or jury. To a great degree you lose control of the outcome.

No. 3 - You litigate when you have a high degree of confidence that you will prevail. Bluffing is for weekend games of Texas Hold'em . When you file suit, you need to have fully evaluated all aspects of the case to ensure that the outcome will be favorable.

No. 4 - You litigate to win. This means that your employees, board and management team fully understand and support the commitment (both financial and time) required to prevail. It also means having seasoned litigation counsel who understand your business and objectives.
While his perspective is towards enforcing a company's intellectual property rights, his analysis can easily be applied to defending employment litigation.  Most notably different is that employers do not chose when to be sued for wrongful termination or wage and hour claims.  However, the company should be completely prepared to defend itself in litigation - in California it is only a matter of when.  In order to develop a strong defense, the company should work with experienced employment attorneys to establish policies that (1) comply with the law and (2) assist the company when a lawsuit is filed.  I mention the second point because while companies have policies that comply with the law, when litigation starts the fact that you have complied with the law is good, but the company needs PROOF that it complied with the law.  An experienced employment litigator can help companies set up policies to document the areas that will most likely be areas of contention during litigation.  For example, California companies should have a clear "at-will" policy signed by the employee, should have a system (preferably computer based) for recording when employees take their meal breaks, and have a clear policy on rest breaks that is in some way acknowledged by employees.

Also, this process of working with an attorney in establishing solid policies is a great period to see if the company likes working with the attorney and (hopefully) develops a good relationship that is critical in any attorney-client relationship.  This also allows the attorney to become familiar with the company and its business and objectives as Mike mentions in No. 4 above.

Finally, companies need to understand Mike's point No. 4 - You litigate to win.  Once a case is filed against a company, the message communicated throughout the company should be that it is extremely important to spend the time necessary to assist the outside counsel in defending the case.  Owners, executives and employees must give their undivided attention to the litigation.  To do otherwise is a costly mistake.

Unintended Consequences Of Paid Leave Mandates

There is a great article in today's Wall Street Journal (subscription required) that tries to bring some common sense into the discussion about the current trend by states to require employers to provide paid family leave.  Here's an excerpt from the article:
The political logic seems to be that government must require this benefit because employers are too greedy and heartless to do so on their own. Here's the reality: All forms of paid leave already cost employers an average of $1.76 an hour per full-time employee, or 6.8% of total compensation, according to the Labor Department. Companies don't want disgruntled employees and thus tend to offer benefits that are competitive with their industry and consistent with profitability. Today 85% of employers with 20 or more workers provide tuition assistance, 45% offer adoption assistance, 74% paid sick leave, 57% flex time, and 77% paid vacations.
The article explains that there is a cost associated with requiring employers to provide even more generous paid leave - fewer jobs and a higher unemployment rate.

Human Resources Seminar: Employee Handbooks & Policies

As another reminder, Van Vleck Turner & Zaller LLP will be conducting a free seminar for employers and human resource professionals regarding employee handbooks and employment policies. 

The seminar will take place on July 10, 2007 at 3:00 p.m. to 4:30 p.m. at Tony P's Dockside Grill in Marina del Rey.  After the seminar, please join us for networking and cocktails overlooking Marnia del Rey. 

Attorneys from our firm will lead a discussion on employee handbooks and policies including:
  • Policies every California employer must have
  • Policies every California employer should have
  • What not to include in an employee handbook or policies distributed to employees
  • Other issues related to handbooks and policies
At the end of the presentation, we will also have a question and answer period for the attendees to ask any general employment related questions.  Download a flier with more information here.

To register, please email us or call us at (213) 996-8445 and ask for Vanessa to register. 

Employee's Internet Postings Brought Into Lawsuit

Kevin O'Keefe over at Lexblog (the designer and host of our blog) has an interesting post today about how MySpace and FaceBook are changing the legal community. He writes:
A defense lawyer in a emotional distress claim brought against a school district wanted access to all of the plaintiff's postings at MySpace and FaceBook. However, a judge ruled that the plaintiff's right to privacy trumped the defenses right to information which or may not be relevant to defense of the suit.
Kevin rightly notes that lawyers today need to have a working knowledge of the internet and sites like MySpace and FaceBook.  Our experience is that the Internet is full of information about individuals that is extremely useful during litigation.  This information is usually posted by the individual himself or herself and is shared with the rest of the world. We have had cases were a plaintiff has posted information about his or her prior job on the internet that inevitably contradicts what he or she said during sworn testimony in a deposition.

We also recommend that before an employer hires an employee, the employer should do a quick internet search to see if the employee has information posted in MySpace, FaceBook, Monster.com, and simply run the employee's name through Google. Often times this will enable you to see the “real” person you are about to hire.

Take Time This Summer to Review Your Immigration Law Compliance and Form I-9s

With ICE conducting more and more raids throughout the country, employers should take some time this summer to review their documentation regarding their employees’ eligibility to work to ensure compliance with the current law.

Every U.S. employer must have a Form I-9 in its files for each new employee, unless:
  • the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
  • Form I-9 need not be completed for those individuals:
  • providing domestic services in a private household that are sporadic, irregular, or intermittent;
  • providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
  • providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)
Therefore, almost every employee hired (unless specified in one of the very narrow exceptions above) should complete an I-9 Form.

When do employees have to complete the I-9 Form?
A new employee must complete Section 1 of the Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full.

The employer is responsible ensuring completion of the entire form. Once the employee completes Section 1, the employer must complete Section 2 no later than close of business on the employee’s third day of employment. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The Employer msut carefully follow the instructions found on the Form I-9 regarding which documents are acceptable. Failure to closely follow the instructions could expose the employer to discrimination claims. The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.

If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

What if during the review and employer discovers that I-9s are missing?
The U.S. Citizenship and Immigration Services website provides:
An employer who discovers that the Form I-9 is not on file for a given employee should request that the employee complete section 1 of the Form I-9 immediately and submit documentation as required in Section 2. The new form should be dated when completed--never post-dated. When an employee does not provide acceptable documentation, the employer must terminate employment or risk being subject to penalties for “knowingly” continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

How long do employers need to retain the I-9 Forms?
Employers must maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is longer. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. It is highly recommended that the I-9 Forms and related documents be maintained in separate files so that the documents can be easily produced to the government within the three-day notice period.

House Democrats Consider Passing Bill to Overturn Ledbetter v. Goodyear Tire

House Democrats are seriously considering legislation to overturn the recent Supreme Court decision in Ledbetter v. Goodyear Tire & RubberForbes reports:
House Majority Leader Steny Hoyer, D-Md., and House Education and Labor Chairman George Miller, D-Calif., said House Democrats would pass legislation to ensure what happened to Ledbetter wouldn't happen to anyone else.
"A key provision of the legislation will make it clear that discrimination occurs not just when the decision to discriminate is made, but also when someone becomes subject to that discriminatory decision, and when they are affected by that discriminatory decision, including each time they are issued a discriminatory paycheck," Miller said.
We will continually update the progress of such a bill once/if it is introduced.

Employees' Wages: A Private Matter?

An article in Fast Company discusses whether companies should allow employees to see what other employees earn. The author cites an op-ed piece from the New York Times calling for federal regulations making employers disclose this information (no doubt because of the Supreme Court’s recent ruling in Ledbetter v. Goodyear Tire & Rubber). The article mentions that Whole Foods allows all current employees to look this information up on a computer in every store.

This raises a great point for California employers: what are California employers’ obligations to disclose payroll information?

California Labor Code section 232 provides that employers cannot require employees to refrain from “disclosing the amount of his or her wages.”  Employers are not required to disclose this information, but the labor code does prohibit an employer from discharging, disciplining, or discriminating against an employee who discloses his or her wages.  This is one of the few occasions I believe the current law in California reaches a good balance in giving the employees some control over this "private" information (they do not have to share their wage information with co-workers if they don't want to), but still allows employees who believe they are not being paid fairly, whatever the reason, to do some research of their own.

Analysis on Gentry v. Superior Court (Circuit City)

We attended the oral arguments yesterday in Gentry v. Superior Court.  Kimberly Kralowec, the author of the UCL Practitioner was kind enough to post our initial analysis on the oral arguments in Gentry v. Superior Court

Anthony J. Zaller

Professional:

Anthony is a founding partner of Van Vleck Turner & Zaller LLP. He is a litigation attorney who focuses on California labor and employment law matters.  Anthony attended law school at Loyola Law School in Los Angeles, and received a joint J.D./M.B.A degree. 

Anthony has extensive experience in litigating class action and single plaintiff lawsuits. He has successfully defended California employers in class action lawsuits alleging wage and hour violations, such as unpaid wages, missed meal and rest breaks, exemption status, and mileage reimbursement claims among other issues. He has also successfully litigated many single plaintiff employment cases

including claims of wage and hour violations, wrongful discharge, sexual and racial harassment, discrimination, unfair competition, and

misappropriation of trade secrets and embezzlement.  Anthony has recently obtained complete summary judgment for a fortune 100 company in a lawsuit for disability discrimination, failure to promote, retaliation, and intentional infliction of emotional distress.

Anthony also provides sexual harassment training that complies with California’s AB 1825.

Groups:

Anthony is involved in many trade associations and often speaks to trade groups about California employment law issues.  Anthony has developed a niche in educating restaurateurs about industry specific areas of California labor and employment litigation.  

Anthony serves on the Loyola Marymount University MBA Alumni Board of Directors, and is a member of the LAX/Marina Del Rey Chamber of Commerce. 

Publications:

Anthony devotes most of his time writing for and maintaining the California Labor & Employment Defense Blog, along with his two partners.

He has been quoted in publications regarding California employment law, including Nation's Restaurant News regarding the impact California Supreme Court's landmark ruling in Murphy v. Kenneth Cole. The case determined the applicable statute of limitations for meal and rest break claims.

Personal:

Anthony spends his free time with his wife and two children. If/when he finds even more free time, he is becoming a regular competitor in triathlons, 10k races and enjoys hiking. In May of 2007, he hiked the Grand Canyon for the first time with this brother and his sister-in-law, Ric and Nancy.

View Anthony Zaller's profile on LinkedIn

California Employment Law Seminar: Employment Handbooks and Policies

Van Vleck Turner & Zaller LLP will be conducting a free seminar for employers and human resource professionals regarding employee handbooks and employment policies.  We will lead a discussion on the following topics:
  • Policies every employer is required to implement
  • Policies every employer should implement
  • What not to include in an employee handbook or policies distributed to employees
  • Possible alternatives to employee handbooks
At the end of the presentation, we will also have a question and answer period for the attendees to ask any general employment related questions. 

The seminar will be on July 10, 2007 at 3:00 p.m. to 4:30 p.m. at Tony P's Dockside Grill in Marina del Rey.  After the seminar, please join us for networking and cocktails overlooking Marnia del Rey.  Download a flier with more information here.

To register, please email us or call us at (213) 996-8445. 

CA State Senate Approves Bill Giving "Familial Status" Protection From Discrimination

Yesterday, the California state Senate passed a bill that would make it illegal for employers to deny promotions or raises to employees who miss time from work due to obligations with children, sick spouses, and aging parents. The bill (SB 836 sponsored by Sen. Sheila Kuehl (D-Santa Monica)) passed by a 25-14 vote along party lines and will now go onto the Assembly. If the bill passes the Assembly and is signed into law, it would be the first law of its type in the nation to make “familial status” a protected category under the law.