Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
The California Supreme Court’s recentBrinker decision(April 12, 2012) includes important clarifications onemployee meal breaksas well asrest periods. To ensure compliance, employers must maintain accurate timekeeping systems for employee working hours.
The California Supreme Court’s recent Brinker decision (April 12, 2012) includes important clarifications on employee meal breaks as well as rest periods. To ensure compliance, employers must maintain accurate timekeeping systems for employee working hours.
Under the federal Fair Labor Standards Act (FLSA) and similar California law, employers are required to keep accurate records of hours worked to “nonexempt” employees (those not exempt from overtime pay). Common and acceptable methods of recordkeeping include handwritten time cards, punching time clocks, and use of electronic badge readers or hand scanners.
Some dos and don’ts:
To ensure your timekeeping policies are complete, contact a “management-side” employment attorney.
Related Articles:
In 2000, California enacted Labor Code 226.7, requiring employers to pay an employee an extra hour of compensation for “each work day that the [required] meal or rest period is not provided.” Fueled by that financial incentive, nearly overnight, and for the past 11 years, the vast majority of wage-related lawsuits we have defended for California employers have thus included a seemingly automatic claim for alleged missed meal and rest breaks. It has not been unusual for even a single worker s
In 2000, California enacted Labor Code 226.7, requiring employers to pay an employee an extra hour of compensation for “each work day that the [required] meal or rest period is not provided.” Fueled by that financial incentive, nearly overnight, and for the past 11 years, the vast majority of wage-related lawsuits we have defended for California employers have thus included a seemingly automatic claim for alleged missed meal and rest breaks. It has not been unusual for even a single worker seeking relief to assert thousands of dollars owing over this issue.
Under Labor Code 226.7, employers must provide all hourly employees who work more than five hours in a day with an uninterrupted, unpaid 30-minute meal break. The tens of thousands of lawsuits that have arisen from this section have largely centered on just what “provides” means here. For example, is an employer obligated to pay an employee that extra hour of pay if that worker has voluntarily chosen to work through his or her meal period? Does the law require employers to in effect become the lunch police?
In its widely reported Brinker Restaurant Corp. v. Superior Court (Hohnbaum) decision (April 12, 2012), the California Supreme Court unanimously concluded that requiring an employer to enforce such meal periods goes too far. An employer satisfies its obligation to provide unpaid meal periods when “it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”
However, should an hourly employee decide to continue working through a provided meal period, the employer must compensate that worker for the time when it “knew or reasonably should have known” about such work. The extra work time could also trigger overtime compensation in the event a worker then puts in more than eight hours of labor in a given day.
Chili’s restaurant workers filed the case eight years ago against parent company Brinker International, Inc. They argued the law should require management to issue and enforce directives requiring workers to take their meal breaks and that the employer exploits employees, largely dependent on restaurant tips, who naturally do not want to take their meals during busy periods.
The Supreme Court disagreed, finding a requirement that companies police meal breaks unmanageable. The decision of course does not absolve California employers from clearly communicating in policies and notices that all hourly workers are entitled to such unpaid meal periods. Employers must also strive to make such periods available at reasonable and viable times during the workday.
The Brinker decision also covered important issues on hourly worker rights to paid rest periods. We will cover such points in an upcoming article.
With the aid of knowledgeable legal counsel, employers should promptly review their meal break and rest period policies to ensure they are consistent with Brinker.
(Photo: Oklahoma Historical Society)
The recent California Supreme CourtBrinker decision(April 12, 2012) on the standards for providing meal and rest breaks now permits greater flexibility on scheduling, including employer ability to provide workers the option to skip breaks from time-to-time. However, an employer should take care to institute and maintain written procedures documenting that any such missed break was the employee’s choice, not from the employer’s direction.
The recent California Supreme Court Brinker decision (April 12, 2012) on the standards for providing meal and rest breaks now permits greater flexibility on scheduling, including employer ability to provide workers the option to skip breaks from time-to-time. However, an employer should take care to institute and maintain written procedures documenting that any such missed break was the employee’s choice, not from the employer’s direction.
Prior to Brinker, it was not clear whether employers were obligated to require an employee to take a meal break or rest period even if that worker did not want to take the time off. Brinker clarifies employers do not need to police their employees in this manner. Further, an employer will not incur a penalty if it allows an employee the option of skipping a meal or rest break on occasion.
This greater flexibility requires written policy for management to ensure that any worker choice to forego a break is documented. For instance, an employer can and should have written procedure that directs any employee opting to skip a meal or a rest period to either request that choice in advance in writing or to promptly confirm that choice afterwards in writing. An employer can and should also institute a form for an employee to periodically confirm that any and all skipped breaks in a recent period have been at that person’s choice.
Of course, employers should also ensure they pay employees for all time worked including any meal breaks skipped at a worker’s option.
Whether or not an employer chooses to encourage such flexibility is up to the employer. Once offered however, clear written policy and procedure as above is important. An attorney skilled in developing workplace policies can and should assist in this process.
While the California Supreme Court’sBrinker decision(April 12, 2012) supplied vital and sensible guidelines that do not require employers to act as a“police” authorityconfirming workers take their meal and rest breaks, the law will still impose penalties on a business if its supervisors and managers, for lack of training on the new rules, still violate applicable employee rights.
While the California Supreme Court’s Brinker decision (April 12, 2012) supplied vital and sensible guidelines that do not require employers to act as a “police” authority confirming workers take their meal and rest breaks, the law will still impose penalties on a business if its supervisors and managers, for lack of training on the new rules, still violate applicable employee rights.
While the Brinker decision clarified that Labor Code 226.7 does not require employers to ensure that no work is done during any meal or rest break, the Supreme Court also confirmed employers cannot “impede or discourage” employees from taking that uninterrupted time off. Thus, management should consistently promote the availability of such breaks and avoid actions that can be interpreted as undermining appropriate company policy on the subject. For instance:
– Management should not fail to schedule out employee meal periods: Recognizing that the particular enterprise may have times during the day when the public’s demand for service make an employee meal or rest break unfeasible (for example, retail, hospitality and food service industries), managers can and must develop a meal and rest schedule to ensure all employees nevertheless receive their allotted time at times most practical for the workers and the flow of business.
– Management should not provide incentives for employees to work through their breaks: It could well be trouble for supervisors to offer employees extra pay, overtime or any other incentive for choosing to skip a meal break or rest period. An investigating agency or court could well find such practice as an attempt to “impede or discourage” employees from taking their breaks.
– Management cannot pressure employees: Any supervisor pressure upon an employee to perform job duties during a break or to skip or shorten that meal break could well be viewed as a violation. For example, it would be improper for a manager to ridicule or reprimand employees who do not perform any work during their breaks.
For guidance in creating complete meal and rest period policies or properly training supervisors and managers, contact an experienced employment law attorney.
Related Articles:
Brinker: Clocking In on Employee Timekeeping
How to Avoid Costly Penalties for Missed Meal Breaks
While the California Supreme Court’sBrinker decision(April 12, 2012) supplied vital and sensible guidelines that do not require employers to act as a“police” authorityconfirming workers take their meal and rest breaks, the law will still impose penalties on a business if its supervisors and managers, for lack of training on the new rules, still violate applicable employee rights.
While the California Supreme Court’s Brinker decision (April 12, 2012) supplied vital and sensible guidelines that do not require employers to act as a “police” authority confirming workers take their meal and rest breaks, the law will still impose penalties on a business if its supervisors and managers, for lack of training on the new rules, still violate applicable employee rights.
While the Brinker decision clarified that Labor Code 226.7 does not require employers to ensure that no work is done during any meal or rest break, the Supreme Court also confirmed employers cannot “impede or discourage” employees from taking that uninterrupted time off. Thus, management should consistently promote the availability of such breaks and avoid actions that can be interpreted as undermining appropriate company policy on the subject. For instance:
– Management should not fail to schedule out employee meal periods: Recognizing that the particular enterprise may have times during the day when the public’s demand for service make an employee meal or rest break unfeasible (for example, retail, hospitality and food service industries), managers can and must develop a meal and rest schedule to ensure all employees nevertheless receive their allotted time at times most practical for the workers and the flow of business.
– Management should not provide incentives for employees to work through their breaks: It could well be trouble for supervisors to offer employees extra pay, overtime or any other incentive for choosing to skip a meal break or rest period. An investigating agency or court could well find such practice as an attempt to “impede or discourage” employees from taking their breaks.
– Management cannot pressure employees: Any supervisor pressure upon an employee to perform job duties during a break or to skip or shorten that meal break could well be viewed as a violation. For example, it would be improper for a manager to ridicule or reprimand employees who do not perform any work during their breaks.
For guidance in creating complete meal and rest period policies or properly training supervisors and managers, contact an experienced employment law attorney.
Related Articles:
Brinker: Clocking In on Employee Timekeeping
How to Avoid Costly Penalties for Missed Meal Breaks
A business subject to the federalAge Discrimination in Employment Act(ADEA) (those with 20 or more persons on payroll) must ensure it terminates, disciplines or denies benefits to any “older” employee (40 years or more) on “reasonable factors other than age ” (RFOA).
A business subject to the federal Age Discrimination in Employment Act (ADEA) (those with 20 or more persons on payroll) must ensure it terminates, disciplines or denies benefits to any “older” employee (40 years or more) on “reasonable factors other than age ” (RFOA).
Workplace discrimination claims come in two main forms. “Disparate treatment” claims allege outright discrimination because of the employee’s protected characteristic (age, gender, race, national origin, etc.). “Disparate impact” claims allege that seemingly neutral business practices result in a pattern of discriminatory impact upon persons sharing some protected characteristic, for example a company layoff policy that results in more terminations of older people than younger individuals.
Disparate impact and age discrimination is particularly touchy. For example, a company may well conclude that younger workers should be retained when, as a rule, such individuals tend to more knowledgeable and skilled in particular industries, trumping older employees’ experience. However, a seemingly logical, business-based practice could be successfully challenged if the employer does not systematically document the performance-based criteria applied in such layoff decisions.
Following two Supreme Court decisions critical of Equal Employment Opportunity Commission’s (EEOC) regulations in this area and a 50% increase in age discrimination charges since 2000, the agency published on March 29, 2012 its final rule on Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.
The EEOC’s press release announced the new rule “clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals unless the employer can show that the policy or practice is based on a reasonable factor other than age … The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”
To successfully assert the RFOA defense, the EEOC directs that an employer must show that its workplace practice was both designed and applied to achieve “a legitimate business purpose.” The final rule specifies relevant considerations in this process:
These newly clarified criteria create the renewed importance for businesses to examine and document key practices and programs that can disproportionately impact older workers, including hiring, training, discipline and termination. An experienced employment law attorney can assist. While the new rule applies to the federal law, state counterpart guidelines could well follow. In California, businesses with five or more on payroll are subject to the age (40-plus) discrimination prohibitions of the Fair Employment and Housing Act (FEHA).
photo: Dorothe Lange
A business subject to the federalAge Discrimination in Employment Act(ADEA) (those with 20 or more persons on payroll) must ensure it terminates, disciplines or denies benefits to any “older” employee (40 years or more) on “reasonable factors other than age ” (RFOA).
A business subject to the federal Age Discrimination in Employment Act (ADEA) (those with 20 or more persons on payroll) must ensure it terminates, disciplines or denies benefits to any “older” employee (40 years or more) on “reasonable factors other than age ” (RFOA).
Workplace discrimination claims come in two main forms. “Disparate treatment” claims allege outright discrimination because of the employee’s protected characteristic (age, gender, race, national origin, etc.). “Disparate impact” claims allege that seemingly neutral business practices result in a pattern of discriminatory impact upon persons sharing some protected characteristic, for example a company layoff policy that results in more terminations of older people than younger individuals.
Disparate impact and age discrimination is particularly touchy. For example, a company may well conclude that younger workers should be retained when, as a rule, such individuals tend to more knowledgeable and skilled in particular industries, trumping older employees’ experience. However, a seemingly logical, business-based practice could be successfully challenged if the employer does not systematically document the performance-based criteria applied in such layoff decisions.
Following two Supreme Court decisions critical of Equal Employment Opportunity Commission’s (EEOC) regulations in this area and a 50% increase in age discrimination charges since 2000, the agency published on March 29, 2012 its final rule on Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.
The EEOC’s press release announced the new rule “clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals unless the employer can show that the policy or practice is based on a reasonable factor other than age … The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”
To successfully assert the RFOA defense, the EEOC directs that an employer must show that its workplace practice was both designed and applied to achieve “a legitimate business purpose.” The final rule specifies relevant considerations in this process:
These newly clarified criteria create the renewed importance for businesses to examine and document key practices and programs that can disproportionately impact older workers, including hiring, training, discipline and termination. An experienced employment law attorney can assist. While the new rule applies to the federal law, state counterpart guidelines could well follow. In California, businesses with five or more on payroll are subject to the age (40-plus) discrimination prohibitions of the Fair Employment and Housing Act (FEHA).
photo: Dorothe Lange
The federal National Labor Relations Board (NLRB) guarantees the right of employees to organize unions to “bargain collectively” with their employees.
The federal National Labor Relations Board (NLRB) guarantees the right of employees to organize unions to “bargain collectively” with their employees.
With a few exceptions, employers will soon have to conspicuously display the agency’s “Employee Rights under the National Labor Relations Act” poster. The original November 14, 2011 deadline was recently moved to January 31, 2012 “in order to allow for enhanced education and outreach for employers, particularly those who operate small and medium sized businesses.”
Employers who customarily post personnel and rules and policies on an internet or intranet site are required to post the notice electronically.
The notice must be posted in English and in any other language spoken by 20% or more of the workforce (if the 20%-plus are not otherwise proficient in English).
Among other things, the poster informs workers they have the right to:
● Organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment;
● Discuss wages, benefits, other terms and conditions, or union organizing with co-workers;
● Strike and picket, “depending on the purpose or means of the strike or the picketing” (a subject capable of filling several volumes; and
● Choose not to participate in any organizing activities, “including joining or remaining a member of union”
The poster also informs the reader on the improper actions of employers (e.g., cannot prohibit workers from “talking union” during non-work time) and of the unions (e.g., cannot “threaten or coerce” in order to gain a worker’s support for the union).
The exemption rules (no need to post the notice) are extensive. Labor unions grossing more than $50,000/year must display the poster. Hospitals that gross $250,000 or more annually, casinos making $500,000-plus/year, and colleges, universities and private schools with $1,000,000 or more income yearly all must post. There are many threshold level in between for other sorts of companies. See the NLRB’s “Frequently Asked Questions” for more.
… and, oh yes, there are no fines to an employer for failure to post. The NLRB informs us that an employer who is found to have neglected this requirement will receive the equivalent of a wrist slap. The agency also advises “If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.” Emphasis supplied.
The federal National Labor Relations Board (NLRB) guarantees the right of employees to organize unions to “bargain collectively” with their employees.
The federal National Labor Relations Board (NLRB) guarantees the right of employees to organize unions to “bargain collectively” with their employees.
With a few exceptions, employers will soon have to conspicuously display the agency’s “Employee Rights under the National Labor Relations Act” poster. The original November 14, 2011 deadline was recently moved to January 31, 2012 “in order to allow for enhanced education and outreach for employers, particularly those who operate small and medium sized businesses.”
Employers who customarily post personnel and rules and policies on an internet or intranet site are required to post the notice electronically.
The notice must be posted in English and in any other language spoken by 20% or more of the workforce (if the 20%-plus are not otherwise proficient in English).
Among other things, the poster informs workers they have the right to:
● Organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment;
● Discuss wages, benefits, other terms and conditions, or union organizing with co-workers;
● Strike and picket, “depending on the purpose or means of the strike or the picketing” (a subject capable of filling several volumes; and
● Choose not to participate in any organizing activities, “including joining or remaining a member of union”
The poster also informs the reader on the improper actions of employers (e.g., cannot prohibit workers from “talking union” during non-work time) and of the unions (e.g., cannot “threaten or coerce” in order to gain a worker’s support for the union).
The exemption rules (no need to post the notice) are extensive. Labor unions grossing more than $50,000/year must display the poster. Hospitals that gross $250,000 or more annually, casinos making $500,000-plus/year, and colleges, universities and private schools with $1,000,000 or more income yearly all must post. There are many threshold level in between for other sorts of companies. See the NLRB’s “Frequently Asked Questions” for more.
… and, oh yes, there are no fines to an employer for failure to post. The NLRB informs us that an employer who is found to have neglected this requirement will receive the equivalent of a wrist slap. The agency also advises “If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.” Emphasis supplied.