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Entries in wage and hour claims (8)

Thursday
Apr122012

Landmark Decision: CA Supreme Court Decides Employers Are Not Meal Police

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

Employees of Brinker Restaurant Corporation (the parent company of Chili’s, Maggiano's, and Macaroni Grill, among others) brought a class action against Brinker alleging years of meal and rest period violations.

The employees claimed Brinker required them to take early lunches and then work an additional five to nine hours without a second meal break – and that this requirement violated wage and hour laws.

The plaintiffs also alleged employees were required to work off the clock during meal periods; that managers altered employee time cards; and that Brinker had an obligation to ensure employees take their meal periods.

The trial court ruled mostly for the employees, but Brinker appealed, and the Appellate Court ruled in favor of the employer and determined the claim could not proceed as a class action. The California Supreme Court granted review to resolve the questions regarding the nature of meal and rest breaks, how they should be provided, as well as whether or not the claims presented should be treated in a class action setting. The Court heard arguments in November, and delivered its decision today.

According to the decision written by Associate Justice Kathryn M. Werdegar, the most contentious issue proved to be whether employers must police meal periods to ensure employees take those breaks without doing any work in a 30 minute time frame.

 

The Supreme Court's Decision – Providing vs. Policing

 

The Supreme Court concluded an employer's obligation ends with providing the meal period. Once a meal break begins, an employee is "at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done."

The Court also decided that though first meal break must be provided no later than five hours into a shift, the employer need not schedule another meal break within five hours after the first meal period ended. Rather, employers must only provide a second meal break after 10 hours of work.

 

Employee Break Times Put to Rest Too

 

The Supreme Court cited Industrial Welfare Commission wage order rules, deciding that employees are entitled to a 10 minute break in the middle of each four hour work period (or “major fraction thereof”), meaning for many employees a rest break should be permitted between 3.5 and 6.0 hours of work into a shift. However, rest breaks are not necessarily required for a specific time before or after the meal period.

 

The Takeaway

 

All in all, the decision today is good news for employers, as it limits the scope of responsibility regarding meal periods:

“We conclude that under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”

 

Sue M. Bendavid is the Chair of our Employment Practice Group. Employers with questions regarding today's landmark decision can reach her at 818.990.2120.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Thursday
Jun302011

California Employment Law Tips: Prepping for a Labor Audit

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

 

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

 

When it comes to California employment law, I always tell my clients: The best employer defense is prevention.

That means that as an employer, you should be prepared for everything – including a potential visit from the U.S. Department of Labor, or the California Labor Commissioner. (Read my previous blog, California Labor Laws – Ready for a Labor Commissioner Visit? for more information regarding what usually happens when you do get such a visit.)

But if, as a California employer, you want to stay one step ahead of the Commissioner and potential employee claims, there are some things you can do to prevent penalties or litigation.

Best Employer Defense –10 Tips from a Los Angeles Employment Lawyer

 

Prevention begins with good employee policies. Though a wage and hour audit can cover a whole host of topics, the typical situation focuses on overtime, exempt/non-exempt, meal and rest period rules and accurate recordkeeping and documents. See if you can answer “yes” to all of these questions, to see if you will pass a wage and hour audit:

1. Overtime
Are you paying the correct overtime premiums for hours worked by non exempt employees in excess of eight in the day, and 40 in the workweek?

2. Exempt & Non-Exempt Employees
Have you correctly characterized employees as “exempt” (not entitled to overtime pay) rather than “non-exempt” (entitled to overtime)?

3. Independent Contractors
Have you correctly identified which workers are company employees and which are independent contractors?

4. Meal Periods
Do your employees clock in and out and take a minimum of 30 minutes of duty-free meal periods after no more than five hours of work?

5. Rest Periods
Do you provide your employees with a 10 minute rest break in the middle of each four hour work period?

6. Off the Clock Work
Do you prohibit your employees from working “off the clock”?

7. Correct Wage Statements
Do you provide itemized wage statements with all required data, and do they correctly reflect pay rates and hours worked?

8. Rounding Policies
If you round off an employee’s time worked, do you comply with the law and pay the employee accurately?

9. Time Clock Corrections
When you make changes to time records, do you ask employees to verify the information is accurate and to initial the corrections?

10. Child Labor
Do you have the appropriate permits needed to employ minor workers?

If you answered “no” to any of the above California employment law questions, you should re-evaluate your company’s wage and hour policies and procedures. Correcting mistakes now will save you stress and expense in the long run. In fact, you can be held liable for violations going back for several years – it’s best to make sure you have everything in order now.

As a Los Angeles employment lawyer, I know most employers get into trouble because they simply make administrative mistakes, or don’t have good wage and hour employee policies and practices in effect. As I said, the best employer defense is not offense, but prevention.

Employment Defense Attorney Sue M. Bendavid is Chair of the California Employment Law Practice Group, who provides counsel and litigation services for business owners and supervisors throughout the state. Contact her via e-mail: sbendavid@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Apr282011

Top 10 Management Mishaps

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Editor's Note:  This list by Los Angeles Employment Lawyer Nicole Kamm was initially posted on the blogsite TheHiveMarketing.com on April 18, 2011. Please visit The Hive Marketing if you would like to read this post in its original format. 

 

Today's economy makes managing employees much more difficult. There's increased pressure to do more with less -- and in many cases, a lot less.  Mistakes inevitably occur. But you can sidestep some of these pitfalls if you know what to watch for.

Here are the Top 10 Management Mishaps to avoid so you can take steps to stay compliant with California employment laws, and hopefully safeguard your company against potential claims:

 

1.  E-mail Hazards - Watch What You Write

 

Hazard #1A more senior employee e-mails you that after 25 years with the Company, he is considering retirement.  You reply that it is about time he retire and attach information about Social Security and MediCare benefits.

Hazard #2:  You and an employee argue or disagree, which prompts you to vent by sending some particularly nasty comments about the employee to another supervisor. 

Hazard #3:  While checking your personal e-mail account, you watch a hilarious YouTube video full of offensive language. . .which you forward to a coworker you know will love it.

Recommendation

Cases in litigation are often made or broken by e-mails. Common e-mail mistakes include:

▪  Thinking e-mails are deleted after pressing the delete button.

▪  Believing e-mails are confidential if written only to internal management.

▪  Viewing e-mails as a conversation instead of a formal letter.

Don't hit the "Send" button until you visualize your e-mail as a 3’x4’ poster read aloud by opposing counsel in front of a 12-person jury.  This exercise helps you avoid some of the most common e-mail mistakes.

 

2.   Document Everything! (Even Verbal Warnings)

 

Remember: “If it is not in writing, it didn’t happen.”

As a Los Angeles employment lawyer, my mantra is “document, document, document.” 

As a human resources or management executive, you can help cover your bases with notes to the file, letters to the employee, memos to general staff, e-mails to management personnel, minutes of management meetings, etc. 

Everything that happens in the workplace that may be employee claim-related should be documented. And this definitely includes in-person meetings and verbal warnings.

 

3.   Improper or Incomplete Documentation - Be Detailed

 

 

Remember: “If it’s not documented well, better that it not be documented at all.”

Incorrect or incomplete documentation weakens even the strongest case.  As an employer, you should review all documentation and consider consulting an employment attorney before finalizing any writing.

 

4.  Reviews and Terminations - Say What You Mean

 

Sometimes human resources or management can “sugar coat” reviews and employee termination notices.  This could turn sour if the employee is angry and inclined to sue. 

Avoid telling the employee, “Your layoff has nothing to do with your performance." If  the employee takes you to court, it's hard to make a case for poor performance when you sugarcoat. 

Employees in litigation commonly use positive performance reviews when terminated in an effort to demonstrate they were good performers and the reasons they were given for termination were “pretextual,”  defined as “a fictitious reason that is concocted in order to conceal the real reason.” Examples of pretextual reasons include termination:

▪  Due to a work-related injury,

▪  For lodging a complaint (e.g., harassment, discrimination), or

▪  For excessive absences related to “protected activities” (e.g., disability, jury duty, witness duty).

Recommendation: 

Plan what you are going to communicate before saying or writing it.  Be honest and concise.  Explain the reasons behind the review or termination, but don’t be defensive or argue.  Remember, a single review or termination may be the linchpin for a future claim.

 

5.  Employee Complaints - Never Ignore Them

 

As a supervisor, you must notify HR or upper management immediately when you learn of potentially unlawful conduct.  Legally speaking, once a supervisor is aware of harmful or illegal conduct, the company is deemed to be on notice.

As a business owner or HR executive, you must promptly conduct an investigation when certain complaints arise (e.g., harassment, discrimination, etc.) or potentially illegal conduct is reported.  Employers are under a legal obligation to conduct investigations in these situations.

And investigations are essential to managing the workplace and resolving disputes before lawsuits arise.  You'll want to protect yourself as properly conducted investigations often lead to an important defense after a lawsuit is filed. 

Here are some basic tips for conducting investigations:

▪  Interview both the complainant and alleged perpetrator.

▪  Interview additional witnesses.

▪  Gather additional evidence.

▪  Document every step.

▪  Evaluate and conclude, based on the facts.

▪  Assess and address (if necessary) the future impact of the complaint on the workplace environment.

 

6.  “Off the Clock” Work - Pay Now or Pay Later

 

You must keep track of all hours worked by non-exempt employees.  Record the stop and start time of all work being performed, including the beginning and ending of each meal period.  You'll need to pay for all work being performed by employees (including any “off the clock” work).

Employees often accuse supervisors of pressuring employees to work “off the clock," or of “shaving” time records in an effort to reduce costs and increase bonuses for themselves.  And sometimes managers make honest mistakes, but mistakes don't preclude potential lawsuits.

Example: Employee forgets to clock in or out and manager makes correction on time card.

Recommendation: 

Have your employee initial the change to acknowledge that the corrected time accurately reflects the time worked.

 

7.  Meal and Rest Break Periods - Enforce Them

 

Meal Break Rules:

▪  As an employer, you're required to provide a 30-minute unpaid, duty-free meal break for each work period of more than 5 hours under California law.  However, you and your employee may waive the meal period by mutual consent IF the total work period is no more than 6 hours. 

▪  A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day.  But if the total hours worked is no more than 12 hours, you and your employee may waive this second period by mutual consent -- but only if the first meal period was not waived.

▪  Employees must be relieved of all duty during their 30-minute meal period.  “On duty" meal periods are permitted only when (i) the nature of the work prevents an employee from being relieved of all duty, and (ii) agreed to in writing by you the employer and your employee. 

The penalty for failing to provide a meal period is one additional hour of pay for each workday the meal period is not provided.

Recommendation

You should make sure employees are provided meal breaks and that records reflect meal breaks. Make sure the breaks are taken (i.e., require employees to clock out and in for the full 30-minute break).

 

Rest Break Rules 

▪  As an employer, you must “authorize and permit” your non-exempt employees to take 10-minute rest breaks every four hours. 

▪  However, no rest break is required for employees whose total daily work time is less than 3.5 hours.  Rest breaks should be taken in the middle of each work period, if possible.  You cannot allow your employees to combine rest breaks with meal breaks or use them to come in late or leave early.

▪  Rest periods are counted as time worked, therefore you must pay your employees for this time.  The penalty for failing to provide a rest period is one additional hour of pay for each workday the rest period is not provided.

Recommendation:

Do not deny employees the ability to take 10-minute rest breaks.

 

8.  Enforce Overtime Rules & Pay for Overtime

 

In California, you must provide time-and-one-half the employee’s regular rate of pay for:

 ▪  All hours worked beyond eight in a single workday (or 40 in a workweek), and

 ▪  The first eight hours worked on the seventh consecutive day worked in a single workweek. 

Employers must pay double the employee’s regular rate of pay for:

▪  All hours worked beyond 12 in a single workday, and

▪  The hours worked beyond eight on the seventh consecutive day worked in a single workweek.

California employers my delay payment of overtime wages earned in a pay period no later than the payday for the next pay period. 

If delaying to the following pay period is unavoidable, you must itemize the hours as corrections on the pay stub for the period in which they are paid and identify the date of the pay period to which they are attributable.

A California employer's failure to pay overtime results not only in an obligation to pay the overtime owed, but the failure may also subject you to other penalties under the Labor Code.

 

9.  Leave Rules - Know Them

 

The state requires certain leaves by law, while others are optional.  To make it more confusing, some leaves apply only to companies employing certain numbers of people. 

For example, Pregnancy Disability Leave (PDL) applies to employers with five or more employees whereas the federal Family and Medical Leave Act (FMLA) and state California Family Rights Act (CFRA) only apply to employers with 50 or more employees. 

All employers (even those with only one employee) must provide workers’ compensation disability leave and jury and witness duty leave.  Yet, no employer is required to provide paid vacation or sick leave.

Because the different types of leaves, both required and not, interact with each other in different ways, it is important to understand the various laws and corresponding obligations.

 

10.   “Protected” Activities - Don't Write Up or Terminate Employees for These

 

California law lists a long roster of activities that you cannot cite as grounds for employee termination.  Nor should employees be written up for these reasons.  Some of these include: 

▪  disclosing wages

▪  political activity

▪  limited time off for a child’s school or day care activities

▪  refusing to take polygraph test

These are the top 10 reasons employers leave themselves open to potential legal battles, but they are not all of the reasons. If you feel you need help understanding California's employment laws, you should seek legal counsel. A good Los Angeles employment lawyer can help you navigate the complicated territories of hiring and firing practices, carrying out proper leave and break policies and more. 

Nicole Kamm, Esq. is an Employment Lawyer who represents clients in all aspects of employment law, from counsel to litigation.  For more information, contact Ms. Kamm at (818) 990-2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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