California Governor Jerry Brown recently signed Senate Bill 299 into law extending health insurance coverage benefits for employees out on pregnancy disability leave, effective January 1, 2012. As covered in “Pregnancy Disability Leave,” California employers with five or more persons on payroll (whether full- or part-time) must provide any female employee up to four months of unpaid leave for her pregnancy, delivery and newborn care. (California employers with 50 or more on payroll must also provide any qualified female employee with up to 12 additional weeks of medically required maternity leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA).)

Currently, employers may opt to make group health insurance coverage available to their workers. The new law requires that if a California employer provides such benefits, it must continue to make them available to a pregnant or new mom out on pregnancy disability leave. The employer must continue that coverage on the same terms and conditions applied to active employees. For example, if the employer normally pays an employee’s premium in full when she’s actively on the job, that company must now continue to pay full premium while she’s out on the four month pregnancy leave.

A business may recover from the employee the premiums it paid to maintain such coverage during the leave if the worker fails to return at the end of the four month maximum period and if that failure was not due to exercise of additional leave rights under FMLA/CFRA or not due to a circumstance beyond the employee’s control. .

Employers should review the new law and contact a California labor law attorney if they have any questions on the new requirements.

Specific Written Disclosures to New Hires

Effective January 1, 2012, California Assembly Bill AB 469 will require private employers to distribute a document “in the language the employer normally uses to communicate employment-related information” to all hourly employees at the time of their hire.

The written notice must include:

• The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
• The regular payday designated by the employer;
• Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
• The employer’s name, including any “doing business as” names used by the employer;
• The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
• The employer’s telephone number;
• The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
• Any other information the California Labor Commissioner deems material and necessary.

The Labor Commissioner is to make available a template for employers to follow for such a document. This new requirement does not eliminate existing employer notice rules.

Contact a California labor law attorney with any questions about compliance with and implementation of this new law.

The Internal Revenue Service (IRS) recently announced an increase in the optional standard mileage rate from 51 cents to 55.5 cents per mile for all business miles driven from July 1, 2011 through December 31, 2011. This is highest IRS standard rate since the latter part of 2008. www.irs.gov.

Although the IRS typically updates its new rates each fall for the next calendar year, the IRS chose a mid-year increase due to increased gasoline prices, which IRS Commissioner Doug Shulman stated “are having a major impact on individual Americans.”

While gasoline prices are a significant factor in its calculations, the IRS also looks at depreciation, insurance and other fixed and variable costs when setting mileage rates.

Employers using the IRS standard mileage rate to reimburse employees should of course note the increase.

Employers should also take the opportunity to verify each employee driving on company time possesses a current driver’s license and personal auto liability coverage in the amounts required by applicable state law.

Harris v. Superior Court Decision Confirms Administrative Exemption Requires Detailed Case-by-Case Analyses and Job Descriptions

The Supreme Court of California ruled today there are no easy assumptions when an employer seeks to qualify company “administrators” as exempt from overtime. Francis Harris v. Superior Court of Los Angeles County, No. S156555, opinion filed December 29, 2011.

For well over a decade, California has been a battleground on just what managerial roles and duties an employee must play in order to meet the administrative exemption. The difficulty first stemmed from a lack of definition in the 1998 regulations of the term “administrative work.” Today’s Harris decision observed that the Industrial Welfare Commission (IWC) sought to remedy the potential ambiguity by issuing in October, 2000 a set of “seven fairly extensive and interrelated subdivisions” to specifically define “administrative work,” now found for example in the IWC’s Wage Order 4 (covering most white collar workers), sections 1(A)(2)(a)-(g). However, as the Harris decision also pointed out today, the legal battles have nevertheless continued in part because some lower courts have failed to closely apply that seven-part definition.

Perhaps the most important lesson from the Harris decision is that employers must limit the potential for challenges to their administrative worker classifications by carefully comparing the roles and duties each such employee carries against each element of the IWC’s expanded definition for such workers. As Harris makes it clear that the analysis is a case-by-case proposition, companies should also take care to create or update to well-crafted written job descriptions that contain all the necessary elements from the regulations and that match the actual roles and duties of their administrators. The task is best embraced with the assistance of skilled, experienced labor counsel.

Defining Freedom in the Post 9-11 World

Please save the date:
Saturday, December 10, 2011
9:30 A.M. – NOON

Youth for Human Rights International and
United for Human Rights present:

TERRORISM AND CIVIL LIBERTIES
Defining Freedom in the Post 9-11 World

Brunch with presentations and panel to follow.

Church of Scientology of Pasadena
35 S. Raymond Ave, Pasadena, CA 91105

RSVP:Bowles Law Offices
(626) 583-6600

Are California Employers Responsible if Workers Skip Them?

California companies must provide non-union workers with at least a 30 minute unpaid meal break between shifts and at least a ten minute paid break during each shift. See, “Employee Meal Periods and Rest Breaks, California’s Basic Requirements for R&R,” April 8, 2011.

However, even though the applicable statutes were enacted more than ten years ago (California Labor Code sections 226.7 [2000] and 512 [1999]), the courts have still not resolved just what “providing” a break or meal period means. Labor Code 226.7(a) very clearly prohibits employers from requiring employees to work “during any [required] meal or rest period.” However, must businesses go further? Does the state require a business to ensure employees take their breaks and meals by policing the workplace? Or is it enough for an employer to provide the schedule that permits a worker to take advantage of rest breaks and meal periods, leaving it up to the worker?

The issue has significant economic consequences in some industries, for example restaurants where a server may well want to skip a break in order to maximize tips.

The California Supreme Court is expected to place most or all of the controversy at rest in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum). The Court heard oral argument this week in the case (November 8, 2011) and must issue its opinion within 90 days, by early Feburary, 2011.

The Brinker company operates some 137 restaurants in the state, including Chili’s Grill & Bar, Romano’s Macaroni Grill and Maggiano’s Little Italy. Its written policy for unpaid meal periods and paid rest breaks provides that employees are “entitled to a 30-minute meal period” when they “work a shift that is over five hours.” It also provides that employees who clock out for a meal period “must clock out for a minimum of 30 minutes.” It also states that employees who work “over 3.5 hours” during a shift are “eligible for one [10-]minute rest break for each 4 hours that [they] work.”

While this is a straightforward, standard statement of the California standards, the five named employees challenge Brinker’s alleged actual practices – including purportedly requiring servers to give up tables and tips if they want to take a break and allegedly scheduling employee meal periods too early in the first shift, thus missing a first break. Those employees also seek to certify their suit as a class action that would potentially hold Brinker’s liable to most or all servers in each of its restaurants statewide. This of course significantly raises the stakes of the decision. We will keep you posted on the results in the Supreme Court. Whatever that outcome, contact an employment law attorney who can provide knowledgeable guidance on meal and rest policies and practices.

Are California Employers Responsible if Workers Skip Them?

California companies must provide non-union workers with at least a 30 minute unpaid meal break between shifts and at least a ten minute paid break during each shift. See, “Employee Meal Periods and Rest Breaks, California’s Basic Requirements for R&R,” April 8, 2011.

However, even though the applicable statutes were enacted more than ten years ago (California Labor Code sections 226.7 [2000] and 512 [1999]), the courts have still not resolved just what “providing” a break or meal period means. Labor Code 226.7(a) very clearly prohibits employers from requiring employees to work “during any [required] meal or rest period.” However, must businesses go further? Does the state require a business to ensure employees take their breaks and meals by policing the workplace? Or is it enough for an employer to provide the schedule that permits a worker to take advantage of rest breaks and meal periods, leaving it up to the worker?

The issue has significant economic consequences in some industries, for example restaurants where a server may well want to skip a break in order to maximize tips.

The California Supreme Court is expected to place most or all of the controversy at rest in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum). The Court heard oral argument this week in the case (November 8, 2011) and must issue its opinion within 90 days, by early Feburary, 2011.

The Brinker company operates some 137 restaurants in the state, including Chili’s Grill & Bar, Romano’s Macaroni Grill and Maggiano’s Little Italy. Its written policy for unpaid meal periods and paid rest breaks provides that employees are “entitled to a 30-minute meal period” when they “work a shift that is over five hours.” It also provides that employees who clock out for a meal period “must clock out for a minimum of 30 minutes.” It also states that employees who work “over 3.5 hours” during a shift are “eligible for one [10-]minute rest break for each 4 hours that [they] work.”

While this is a straightforward, standard statement of the California standards, the five named employees challenge Brinker’s alleged actual practices – including purportedly requiring servers to give up tables and tips if they want to take a break and allegedly scheduling employee meal periods too early in the first shift, thus missing a first break. Those employees also seek to certify their suit as a class action that would potentially hold Brinker’s liable to most or all servers in each of its restaurants statewide. This of course significantly raises the stakes of the decision. We will keep you posted on the results in the Supreme Court. Whatever that outcome, contact an employment law attorney who can provide knowledgeable guidance on meal and rest policies and practices.

Court Rules Childbearing is a Life Choice Not Entitled to Special Treatment or Extra Benefit

A New York federal judge has dismissed the Equal Employment Opportunity Commission’s (EEOC) effort to bring a “motherhood”-based class action suit against financial and media services giant Bloomberg L.P.. The judge found the EEOC failed to demonstrate sufficient common factual circumstances among the proposed participants to justify a single class-action suit on behalf of all of them.

The EEOC asserted that Bloomberg L.P. systematically discriminated against mothers and pregnant women by reducing their pay, demoting them or excluding them from important meetings. The suspected discrimination was said to have taken place starting in February 2002, after Michael Bloomberg, the founder and majority shareholder of the company, had been elected Mayor of New York, ceasing his day-to-day role at the company. Still, the EEOC alleged that Mr. Bloomberg “is responsible for the creation of the systemic, top-down culture of discrimination.”

However, in an August 17, 2011 ruling, Judge Loretta A. Preska of the United States District Court in Manhattan found that the claim on behalf of 603 women did not provide sufficient statistics and other definite proof that discrimination was an on-going commonly shared problem, relying rather on “anecdotes.”

“At most, the E.E.O.C. has shown some isolated remarks from a few individuals over the course of a nearly six-year period in a company of over 10,000, with over 600 women who took maternity leave,” she wrote. “Relying on a handful of individuals’ statements does not amount to showing a pattern or practice of intentional discrimination.”

Judge Preska concluded the EEOC’s lawsuit amounted to “a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance.” The judge disagreed that this was enough to establish that the workers could sue this employer in a single class-action (as opposed to each bringing a separate claim). “The law does not mandate ‘work-life balance.’ It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be ‘forward thinking.’ But they are not required by law.”

Court Rules Childbearing is a Life Choice Not Entitled to Special Treatment or Extra Benefit

A New York federal judge has dismissed the Equal Employment Opportunity Commission’s (EEOC) effort to bring a “motherhood”-based class action suit against financial and media services giant Bloomberg L.P.. The judge found the EEOC failed to demonstrate sufficient common factual circumstances among the proposed participants to justify a single class-action suit on behalf of all of them.

The EEOC asserted that Bloomberg L.P. systematically discriminated against mothers and pregnant women by reducing their pay, demoting them or excluding them from important meetings. The suspected discrimination was said to have taken place starting in February 2002, after Michael Bloomberg, the founder and majority shareholder of the company, had been elected Mayor of New York, ceasing his day-to-day role at the company. Still, the EEOC alleged that Mr. Bloomberg “is responsible for the creation of the systemic, top-down culture of discrimination.”

However, in an August 17, 2011 ruling, Judge Loretta A. Preska of the United States District Court in Manhattan found that the claim on behalf of 603 women did not provide sufficient statistics and other definite proof that discrimination was an on-going commonly shared problem, relying rather on “anecdotes.”

“At most, the E.E.O.C. has shown some isolated remarks from a few individuals over the course of a nearly six-year period in a company of over 10,000, with over 600 women who took maternity leave,” she wrote. “Relying on a handful of individuals’ statements does not amount to showing a pattern or practice of intentional discrimination.”

Judge Preska concluded the EEOC’s lawsuit amounted to “a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance.” The judge disagreed that this was enough to establish that the workers could sue this employer in a single class-action (as opposed to each bringing a separate claim). “The law does not mandate ‘work-life balance.’ It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be ‘forward thinking.’ But they are not required by law.”