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.”

Saturday, July 30, 2011
9:30 A.M. – NOON

Youth for Human Rights International presents: REVERSING HUNGER
with Irving Sarnoff
Founder, Friends of the United Nations

Admission Free. Donations Accepted.
Brunch, with presentations and panel to follow.

Where: Church of Scientology of Pasadena
35 S. Raymond Ave, Pasadena, CA 91105
(626) 792-7533

RSVP: Michele Kirkland (323) 663-5797
director@youthforhumanrights.org

Copyright © 2011 Youth for Human Rights International. All rights reserved. Photo: ShutterStock.

Saturday, July 30, 2011
9:30 A.M. – NOON

Youth for Human Rights International presents: REVERSING HUNGER
with Irving Sarnoff
Founder, Friends of the United Nations

Admission Free. Donations Accepted.
Brunch, with presentations and panel to follow.

Where: Church of Scientology of Pasadena
35 S. Raymond Ave, Pasadena, CA 91105
(626) 792-7533

RSVP: Michele Kirkland (323) 663-5797
director@youthforhumanrights.org

Copyright © 2011 Youth for Human Rights International. All rights reserved. Photo: ShutterStock.

California’s Labor Codes do a lot to protect employees but there are some laws that benefit employers as well. For instance, unless a company and an employee agree otherwise, their relationship is presumed to be “at-will.” As defined, this means there is no promise or obligation of continuing employment. Either the employer or employee may terminate the working relationship at any time, for any legitimate reason or no reason at all, and with or without advance reason.

Thus, employers can potentially strengthen their protections against lawsuits for so-called “wrongful termination” by consistently defining the employment relationship as “at-will” in written agreements, company policies and verbal communications with employees. This includes everything from job announcements and interviews to employee handbooks, training seminars and employee reviews. Knowledgeable employers also strength employee’s “at will” status by avoiding references in written agreements and policies that promise or infer indicate job security or permanence.

There are of course “illegitimate” discriminatory reasons for which an employee may not be disciplined, terminated or denied benefits. In these instances, “at will” employment status is no justification. For instance, a company may not terminate an employee due to his or her race, gender or any other classification protected by law.

The ins and outs of at-will employment policies can sometimes be subtle. An experienced labor law attorney should be able to help.

July 27, 2011

California’s Labor Codes do a lot to protect employees but there are some laws that benefit employers as well. For instance, unless a company and an employee agree otherwise, their relationship is presumed to be “at-will.” As defined, this means there is no promise or obligation of continuing employment. Either the employer or employee may terminate the working relationship at any time, for any legitimate reason or no reason at all, and with or without advance reason.

Thus, employers can potentially strengthen their protections against lawsuits for so-called “wrongful termination” by consistently defining the employment relationship as “at-will” in written agreements, company policies and verbal communications with employees. This includes everything from job announcements and interviews to employee handbooks, training seminars and employee reviews. Knowledgeable employers also strength employee’s “at will” status by avoiding references in written agreements and policies that promise or infer indicate job security or permanence.

There are of course “illegitimate” discriminatory reasons for which an employee may not be disciplined, terminated or denied benefits. In these instances, “at will” employment status is no justification. For instance, a company may not terminate an employee due to his or her race, gender or any other classification protected by law.

The ins and outs of at-will employment policies can sometimes be subtle. An experienced labor law attorney should be able to help.

July 27, 2011

The Equal Employment Opportunity Commission (EEOC) has issued its final rule, effective May 24, 2011, implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The agency’s directive seeks to cement the ADAAA’s expanded scope of workers protected against disability discrimination.

The original ADA (1990) defines “disability” as: a) a physical or mental impairment that substantially limits one or more major life activities; b) a record of such an impairment; or c) being regarded as having such an impairment. The EEOC’s final rule supplies guidelines on how ADAAA will bring a larger number of persons under the ADA’s protections. For instance:

• Previously, an employee needed to show that he is “severely restricted” from carrying out one or more major life activities (e.g, walking, talking, eating) to qualify as “disabled” under the law. Now, a worker needs only to demonstrate he or she is “substantially limited” compared to most people;
• Certain impairments are now almost always to be found to impose “substantial limitations” by definition, including, but not limited to cancer, autism, HIV/AIDS, cerebral palsy, multiple sclerosis, muscular dystrophy, diabetes, epilepsy, intellectual disabilities (formerly called mental retardation), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia;
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment (as was true prior to the ADAAA);
• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the correcting or helpful effects of mitigating measures, such as medication or hearing aids; and
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The new EEOC rule thus directs the inquiry more toward whether there was a discriminatory act and away from fine points on whether the worker’s condition fits the strict definition of disability. The rule of thumb is to always base personnel decisions on sound business factors with “management radar” on high alert when dealing with such decisions concerning persons saddled with physical or mental impairments.

A knowledgeable employment law attorney can and should assist in understanding what precautions to take.

Maintaining Workplace Dress and Appearance Codes

As one never gets a second chance to make a first impression, many employers make it their business to specify a dress code policy, particularly for workers who regularly greet and work with the public. Setting such standards is a proper commercial practice of course, so long as management is well-trained on fielding good faith requests for reasonable accommodation based on religious beliefs or practices. See, March 4, 2011 article, Accommodating Religion in the Workplace, Avoid the Employment Discrimination Gallows.

Of course, some companies simply require uniforms. In a business office where employees choose their daily clothing, the dress code issue should balance the level of professionalism management wishes to convey to the public with common sense. For instance, a set of standards that is on the overly restrictive, micro-management side of the scale might adversely affect morale. On the other hand, a vaguely worded policy that permits “casual” could be misread as condoning “sloppy.”

Dress code policies can cover any limitations on hair styles, jewelry, and “body art” as well as specify a higher level of professional appearance on particular occasions, for example public gatherings and presentations. It is also proper to spell out management’s option to request a clothing change in the event an employee comes to work in a style or manner out of synch with the intended standard.

For help creating workable, legal employee policies, contact us about our signature handbook and forms.