Three Family Leave Bills Vetoed By Governor

California employers should breath a sigh of relief as Governor Schwarzenegger vetoed three bills that provided for expanded leave rights under California law. 

Two of the bills vetoed by the Governor - AB537 and SB727 - proposed to expanded both the unpaid and paid leave programs to include care for a sibling, mother- or father-in-law, grandparent or grandchild.

The third bill vetoed, SB836 (previously discussed here), would have prohibited employment discrimination on the basis of family responsibilities such as caring for a sick relative.

Schwarzenegger said the bills would have increased confusion about leave requirements, confusion that already results in many lawsuits:
California has the strongest employment leave and workplace protection laws in the country...While these laws have been enacted with the best of intentions, they have also caused much confusion.... Instead of expanding the confusing network of laws that presently exist, employers and employees should be working together to eliminate confusion and create a system of workplace laws that ... offers both employers and employees flexibility to meet their respective needs.

How To Stop An Ex-Employee From Spreading Rumors Via the Internet

How can a company prevent a former employee from spreading false rumors about the company on the Internet?

One answer, as according to Kevin O’Keefe, is counter intuitive. Kevin’s answer to the question in a bit, but first: What are the legal options a company can take to prevent an ex-employee from gossiping about the company on the Internet and possibly hurting the company’s reputation? In California, generally speaking there is not much a company can do. First, the former employee has the freedom of speech, and even if the company has a non-compete agreement (which are typically difficult to enforce under California law) the agreement probably does not address this situation. Only if the former employee discloses trade secrets, or other confidential information protected under the law, can the company bring legal action against the former employee to prevent publication. Generally stated, the company has an up-hill battle, and legal action should be the last resort.

Kevin suggests an alternative to legal action: start blogging. While Kevin is biased to blogs (he is the owner of Lexblog – the developer of this blog), his solution is excellent: “A blog, as a means of handling disgruntled employees on the net, may be a bit frightening for corporate heads and PR/communications professionals. But times are changing. Practicality requires doing things differently than they've been done in the past.” While I suggest approaching Kevin’s recommendation with caution (for example, a company would not want to start airing its dirty laundry – especially if potential legal actions are on the horizon). But if the employee has the freedom to sway public opinion via the Internet – the company should also counter this in the marketplace of ideas.

Unpublished Brinker Opinion Ducks Meal Period "Policing" Issue

[UPDATE: On July 22, 2008 - the Fourth Appellate District court issued a published decision (which can be read about here) after the Supreme Court transferred the case back to the court for reconsideration.]

The Fourth Appellate District today issued its much-anticipated decision in Brinker Restaurant v. Superior Court (Hohnbaum). The case had come to the appellate court via a grant of writ review following the trial court’s certification of a class of approximately 60,000 employees who were seeking compensation for “missed” meal and rest breaks.

Meal Periods
The big issue in Brinker was how to interpret the word “provide” when construing Labor Code section 512’s directive to “provide” a 30-minute meal period to employees. Does an employer meet its obligation by simply allowing its employees to take the statutory meal period if they wish to? Or must the employer effectively “force” its workers to take the unpaid break and be strictly liable for penalties if they refuse? Or is there perhaps some middle ground between a completely optional meal period and one that is completely mandatory?

For those who wanted a definitive resolution, Brinker was definitely a disappointment. First, the decision is unpublished, and hence un-citable as precedent. Second, the appellate court ducked the main issue and sent the case back to the trial court with directions to make a determination of its own regarding the scope of the duty. (The trial court had also ducked the issue by certifying the class without deciding exactly what elements the plaintiffs would have to prove).

Rest Breaks
The Brinker opinion does, however, contain a useful discussion of the separate statutory duty to “authorize and permit” rest breaks, which all parties agreed are generally waivable by employees. The court first disposed of some rather strained statutory interpretations by the plaintiffs as to when rest breaks must be provided during a shift. The Court then determined that – given that rest periods are waivable – it was necessarily an abuse of discretion for the trial court to have certified a rest period class. As the Court explained:
[B]ecause (as the parties acknowledge) Brinker’s hourly employees may waive their rest breaks, and thus Brinker is not obligated to ensure that that its employees take those breaks, any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that Brinker violated the provisions of [Labor Code] section 226.7, subdivision (a) and IWC Wage Order No. 5 as plaintiffs allege in the complaint.
The interesting part of this holding is that it reversed certification despite recognizing that the trial court’s decision is entitled to “great deference on appeal.”

This aspect of the ruling also illustrates why the stakes are so high in construing the duty to “provide” meal periods. If the duty is only to provide an optional, waivable meal break it would follow that the same result should apply – and meal period claims would likewise be un-certifiable as a matter of law in most cases.

Petitions to publish the opinion will presumably be filed shortly and we’ll post again if there is any change in the opinion’s current status as non-citable authority.

Weekly Tip: Workplace Posters

In California, all employers must meet workplace posting obligations. Workplace postings are usually available at no cost from the requiring agency. The Department of Industrial Relations requires employers to post information related to wages, hours and working conditions in an area frequented by employees where it may be easily read during the workday. Additional posting requirements apply to some workplaces depending on numerous items, such as the employer's industry.

How do you find out what posters are needed in your company?  While not comprehensive, a great starting place is at the DLSE's website here that provides a list of the recommended posters.  In addition to listing the posters required, employers can download many of the posters directly from the website.  For example, the poster setting forth the minimum wage (which is required to be posted by all California employers) can be downloaded in English and Spanish from the site. 

Weekly Tip: "On-Call", "Stand By" and Travel Time

The California Labor & Defense Blog, is beginning a new series - the Weekly Tip -  to remind employers, HR professionals and in-house counsel about the intricacies of California labor and employment law.  This week we are posting about the DLSE's recommendation on how employers should treat "on-call" and "stand by" time. 

The DLSE takes the view that, on-call or standby time at the work site is considered hours worked for which the employee must be compensated even if the employee does nothing but wait for something to happen. “[A]n employer, if he chooses, may hire a man to do nothing or to do nothing but wait for something to happen. Refraining from other activities often is a factor of instant readiness to serve, and idleness plays a part in all employment in a stand-by capacity”. (Armour & Co. v. Wantock (1944) 323 U.S. 126) Examples of compensable work time include, but are not limited to, meal periods and sleep periods during which times the employees are subject to the employer’s control. (See Bono Enterprises v. Labor Commissioner (1995) 32 Cal.App.4th 968 and Aguilar v. Association For Retarded Citizens (1991) 234 Cal.App.3d 21)

Whether on-call or standby time off the work site is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable “hours worked.” These factors, set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include whether there are excessive geographic restrictions on the employee’s movements; whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and whether and to what extent the employee engages in personal activities during on-call periods.

The DLSE also considers travel time compensable work hours where the employer requires its employees to meet at a designated place and use the employer’s designated transportation to and from the work site. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575)