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Until California courts fully resolve the issue of what an employer must do to “provide” meal periods, employers must remain diligent to take all reasonable measures for ensuring hourly, not-exempt-from-overtime employees actually take timely meal periods. These steps could include:
Until California courts fully resolve the issue of what an employer must do to “provide” meal periods, employers must remain diligent to take all reasonable measures for ensuring hourly, not-exempt-from-overtime employees actually take timely meal periods. These steps could include:
● Conduct a thorough audit of the company’s meal and rest period policies and practices to make sure they reflect a close agreement with the applicable law, preferably with assistance of a California lawyer experienced in wage and hour law;
● Ensure all non-exempt employees read and acknowledge in writing their understanding of the company’s meal and rest period rights policy and the underlying laws;
● Determine if any exception applies for mandatory unpaid meal periods. Consult with a lawyer experienced in wage and hour law on whether the nature of an employee’s work permits a written agreement for a paid “on-duty” meal period. Ensure that any such written agreement for an “on duty” meal period specifies the nature of the work justifying the exception and confirmation the employee may, in writing, revoke the agreement at any time;
● Have supervisors and managers conduct (and document) regular monitoring to ensure employees under them are taking their meal periods and entering their unpaid meal period start and end times on time cards or sheets;
● In the event a manager finds a worker not taking the required meal period, policy and practice should direct that manager’s correction of the matter as well as documented agreement by the worker to take those periods in the future; and
● Ensure proper recordkeeping is in place and maintained (i.e. time cards showing meal period start and end times) for at least a rolling four-year period, or longer if currently engaged in litigation.
Required Postings:Per the California Chamber of Commerce’s informational web pages, California employers must conspicuously display required labor posters or notices where all employees may view them. Several of the employer posters must also be displayed where job applicants can read them (e.g. polygraph protection and state and federal anti-discrimination posters). Even if a company only has one employee, it must display these notices. Companies must post a separate set of these notices in
Required Postings: Per the California Chamber of Commerce’s informational web pages, California employers must conspicuously display required labor posters or notices where all employees may view them. Several of the employer posters must also be displayed where job applicants can read them (e.g. polygraph protection and state and federal anti-discrimination posters). Even if a company only has one employee, it must display these notices. Companies must post a separate set of these notices in each company location. Companies may be fined up to $17,000 for not posting all required notices.
The California labor posters contain the following topics:
2010 Changes to Required Postings: The following are the changes to be made to the required notices:
Required Pamphlets:
Employers must distribute seven pamphlets or notice sheets under the following conditions:
Please note: the State Disability Insurance and the Unemployment Insurance pamphlets contain new updates for 2010.
Fortunately, an “all in one poster” for 2010 containing all California and federal law posters may be purchased from the California Chamber of Commerce along with the up-to-date required pamphlets and notices at
http://www.calbizcentral.com/store/category/pages/posters.aspx.
If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
Overview of Precise Notices California Employers Must Obtain
Overview of Precise Notices California Employers Must Obtain
Many employers find it prudent for various reasons to conduct appropriate background checks in the employee prescreening process.
Such background checks can and should be done through professional reporting agencies established to promptly check available databases. However, employers must be familiar with the frequently interlocking federal and California rules for disclosure and consent before embarking on the process. Please review our newsletter article on Pre-Employment Background Checks for an overview of the applicable federal and state laws in this area.
Per California law, background checks involve two types of consumer reports obtained from reporting agencies that provide such information: (1) consumer credit reports and (2) investigative consumer reports. Consumer credit reports are credit checks (credit worthiness, credit standing, or credit capacity) used for establishing a consumer’s eligibility for employment. Investigative consumer reports are consumer reports in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through any means, including criminal background checks.
California employers interested in obtaining consumer investigative on job applicants or employees must abide by the following precise sequence of required notices and procedures so as not to run afoul of state or federal law.
Step One: Pre-Request Written Notice and Applicant Consent. The California employer must provide written notice and obtain written consent from the job applicant before seeking the report. The pre-request notice and consent form must include a box the applicant may check if he/she wishes to receive a copy of the report.
Step Two: Written Notice to Applicant of Request of Investigative Consumer Report: Prior to obtaining an investigative consumer report, the employer must clearly and conspicuously disclose in writing to the applicant (a) that an investigative consumer report will be sought regarding his or her character, general reputation, personal characteristics and mode of living; (b) the permissible purpose of the report; (c) the name, address and telephone number of the investigative consumer reporting agency conducting the investigation; and (d) the nature and scope of the investigation requested. The employer must also provide a written summary of the consumer’s rights as prescribed by the Federal Trade Commission (FTC) and a summary of California’s parallel Investigative Consumer Reporting Agencies Act, including the applicant’s rights to inspect the agency’s file.
Step Three: Obligation to Provide a Copy of the Investigative Consumer Report: If the applicant wishes to receive a copy of the investigative consumer report, the employer (or professional agency conducting the background check on the employer’s behalf) must comply within three business days of obtaining the report.
Step Four: Employer’s Certification of Compliance to Consumer Reporting Agency: As a condition of obtaining any consumer report, an employer must certify to the reporting agency that it is seeking the report for permissible purposes and that it has complied or will comply with all requirements for notice and disclosure to the applicant.
Step Five: Notice to Applicant of Intended Adverse Action: Before an employer can deny an application based in whole or in part on any consumer report, the employer must provide the subject applicant with a copy of that report, regardless of whether or not the applicant checked the box per step one above, and a written disclosure of the applicant’s rights as prescribed by Federal and California law.
Step Six: Notice to Applicant of Adverse Action: If an employer denies employment wholly or partially on the basis of information in any consumer report – whether or not that report is “investigative” – the company must further provide “oral, written, or electronic notice” of the adverse decision as well as (a) the name, address, and telephone number of the consumer reporting agency; (b) a statement that the reporting agency did not take the adverse action and is unable to provide the applicant the specific reasons for the adverse action; and (c) notice of the applicant’s right to obtain a free copy of the pertinent report within 60 days and to dispute with the agency the accuracy or completeness of any portion of that report.
The above rules do not apply to an investigative consumer report procured or caused to be prepared by an employer if the report is sought for employment purposes due to the employer’s suspicion of wrongdoing or misconduct by the person that is the subject of the investigation.
Not all professional background check companies follow California law when conducting investigative background checks. Employers should consult legal counsel experienced in employment law for practical guidance and full protection of an employer’s rights to seek pertinent background information on key applicants. Such information may well prove invaluable in the hiring decision.
If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
If ten years back, a soothsayer had projected I would shortly be neck-deep in a growing peace and conflict transformation leadership training initiative in Africa, I would have terminated that person’s employment for excessive hallucinations. Yet, in 2010, we are in our fifth year of innovation on just such a human rights Africa campaign, in five countries and growing. The work has become mypro bonopassion.
If ten years back, a soothsayer had projected I would shortly be neck-deep in a growing peace and conflict transformation leadership training initiative in Africa, I would have terminated that person’s employment for excessive hallucinations. Yet, in 2010, we are in our fifth year of innovation on just such a human rights Africa campaign, in five countries and growing. The work has become my pro bono passion.
The first trip to Africa, in August, 2004, was as a relatively conventional American adventure tourist, a safari with my dad for three weeks through some less-traveled preserves in Tanzania. On this return to the developing world 30-plus years after a pre-law school trip to India and Nepal, the African spirit of hope, humanity and diversity seemed to reach in and squeeze my heart to near-bursting.
Thus touched, I volunteered in 2005 to assist Youth for Human Rights International and its founder Mary Shuttleworth on her annual world tour, helping with a regional student conference in Ghana on human rights abuses. We attracted participants from several African countries, including Liberia, Sierra Leone, Nigeria, Uganda, and host Ghana. Among these were Liberian Jay Yarsiah and Ghanaian Sammy Jacobs Abbey.
For that July, 2005 week in Accra and Cape Coast, Jay took me through his copy of the video documentary Liberia, An Uncivil War. This is a jaw-dropping depiction of the 14-year civil conflict in Liberia, particularly the closing events in mid-2003 when rebel forces mortared Monrovia, the main city, civilian bodies were piled like cord wood outside the U.S. embassy, and President Charles Taylor was driven to exile in Nigeria with a relative calm maintained thereafter by international peacekeeping forces.
That week, Jay coupled the video with his recalls as a refugee. The first incident was in 1991 at age 11, escaping with his family through child soldier checkpoints across the Mano River into Sierra Leone. After return to Monrovia, the family fled again in 1995 aboard the packed and derelict ship Bulk Challenge, adrift on the Atlantic for weeks until Ghana’s President Jerry Rawlings allowed the refugees to land and take shelter in the 40,000 person U.N.-run camp at Buduburam.
Yet, Jay’s story did not end with declarations for retribution. He described his determination to help create a worthwhile future in and for his country. After all the reasons to hate and to strike back, his intention to contribute to the end of the madness was remarkable. Jay suggested I might want to come to Liberia at some point to see the human rights issues at play there.
I took him up on that invitation in May, 2006. After a stay in Ghana to work with our colleague Sammy Jacobs Abbey (including a trip to the Buduburam Refugee Camp), I flew to Roberts Field, Liberia. The 40-mile ride to Monrovia was through five United Nations military checkpoints. The main city had some 1.5 million inhabitants. Still, two-plus years following the August, 2003 ceasefire, the town had no electrical grid and no running water.
I wondered upon arrival what could possibly be done to improve conditions with a population traumatized by indiscriminate rape, execution-by-whim, and unspeakable cruelty. Yet, as I was to learn repeatedly through the ensuing years from my determined 20-something hosts and from thousands of other young people we have ultimately reached, any well-intentioned effort is better than inaction.
Indeed, our somewhat random experiment at human rights education on that first visit – improvising impromptu discussions at high school campuses about the United Nations Universal Declaration of Human Rights 1948 – has evolved into an expanding initiative of youth leadership training in five African countries. Please see African Human Rights Leadership Campaign, Beginnings, 2006 – 2007, a further blog describing the first tentative steps on this journey.
For further information, please see www.africanleadershipcampaign.org.
Best wishes, Tim Bowles
California Employer Who Sends Workers Home Early
California Employer Who Sends Workers Home Early
Can Pay for the Privilege
Jim is one of the company’s three customer service representatives. Thirty minutes into the morning shift, the supervisor sends him home for lack of incoming calls. Later in the day, the work picks back up, the supervisor calls Jim back and Jim ends up working a total of seven hours that afternoon and evening. While he was only on premises for 7.5 hours, he is however entitled to 11 hours of pay for that day.
True _____? False _____?
True. Dude, wage law rocks.
The California Industrial Welfare Commission (IWC) wage orders require employers to pay hourly, nonexempt employees extra compensation, called “reporting time pay,” if the company sends them home prior to the end of a shift.
Section 5 of the IWC wage orders, covering nearly every worker and industry in California, provide that if an employee reports but is either not put to work or completes less than half the shift before being sent home for the day, that employer owes the worker for half of that day’s pay, up to a maximum of four hours compensation. Bummer.
That’s not all. Under section 5(B) of the wage orders, if the company calls the employee back to work that day and furnishes less than two hours of work on the second reporting, the employer nevertheless owes that worker another two hours pay. Double bummer.
There are a few exceptions, when: i) company operations don’t start or cease due to threats to employees or property; ii) there is a failure of public services (electricity, water, etc.); and iii) God steps in with an earthquake, etc. “not within the employer’s control.”
The employee is also not going to collect on this rule if he or she is not fit to work, if the employee has not shown for work on time and is fired or sent home as a disciplinary action.
Reporting time pay for hours in excess of the actual hours worked is not counted as hours worked for purposes of determining overtime. This of course also does not apply to exempt status workers since the company as a rule pays them on salary regardless of hours worked daily and weekly.
So, on the question above, the company owes Jim 11 hours pay for that day (at the straight rate), including the seven hours he worked in the afternoon, one-half hour for the first 30 minutes of work and another three and one-half hours reporting time pay, for his showing up in the morning but relieved before the end of that shift for lack of work. Dude.
For more, see Department of Industrial Relations.
Best wishes, Bob Edwards
How Employers Can Regulate Office Romance
How Employers Can Regulate Office Romance
In just about every supermarket tabloid on the shelves, there’s at least one splashy article about actors or actresses falling in love on a movie set. In a 2009 survey by CareerBuilder.com on relationships at work, 37% of U.S. employees surveyed stated they had dated a coworker at some point during their careers, and 32% said they married the person with whom they had an office romance. Workplace dating is a fact of life.
However, all isn’t fair when mixing love and work. Employers are rightfully wary of how to address workplace romances and potential relationship conflicts. Dating a coworker can potentially expose employers to allegations of sexual harassment, sexual favoritism (a form of sexual harassment) or discrimination. However, if an employer interferes too much, it may run the risk of privacy invasion claims.
Although some employers may choose to ban all workplace dating and others may decide not to implement any official policy to address such issues, companies might want to consider implementing policy that (a) prohibits any such relationships that might present a conflict of interest, such as a supervisor dating a subordinate; and (b) defines the parameters of workplace relationships.
If a supervisor wants to date a subordinate, the company can request one of the individuals transfer to another division to avoid potential claims of quid pro quo harassment. Where the couple is not or is no longer in a subordinate-supervisor role at work, the company may require them to enter into a consensual relationship agreement or a “love contract” which defines the parameters of such a relationship. A love contract is a written agreement in which the couple each acknowledge points such as:
Additionally, an employer can and should provide the couple with anti-harassment training even if not required by law to do so. Such training helps the couple know what standards it must comply with and it helps demonstrate management’s commitment to a harassment-free workplace.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth
Stemming from my lifelong interest in international law and development, the African Human Rights Leadership Campaign is apro bonoproject ofYouth for Human Rights Internationalto train young leaders in African countries for human rights advocacy and the eradication of human rights abuses in their lifetimes.
Stemming from my lifelong interest in international law and development, the African Human Rights Leadership Campaign is a pro bono project of Youth for Human Rights International to train young leaders in African countries for human rights advocacy and the eradication of human rights abuses in their lifetimes.
Along with Liberian Jay Yarsiah, Ghanaian Sammy Jacobs Abbey and numerous volunteers in Africa and the States, we have expanded the initiative to five African countries since its 2006 inception. We are intent to see this initiative not only help Africa address the violation of human rights but to contribute to making global human rights the reality.
We now have a separate blogsite for the Campaign, offering From the Ruins, a 12 minute introductory film directed by young filmmaker Ian Jay and with original music from his father Stephen. For more on the Campaign’s human rights work, including its purposes, progress and promise, and to see the video, please see www.africanleadershipcampaign.org.
If you have any questions on this project, please contact me. Best, Tim Bowles
Calculating overtime for weeks when a worker earns a “nondiscretionary” production bonus can be is a trap for unwary employers. Under California and federal law, employers must calculate overtime pay based on an employee’sregularrate of pay. “Regular rate” is not necessarily the same as an employee’s “straight hourly rate.” The calculation for “regular rate” in each workweek is: i)allcompensation earned (including all hourly pay and “nondiscretionary” production bonuses), ii) divided by the n
Calculating overtime for weeks when a worker earns a “nondiscretionary” production bonus can be is a trap for unwary employers. Under California and federal law, employers must calculate overtime pay based on an employee’s regular rate of pay. “Regular rate” is not necessarily the same as an employee’s “straight hourly rate.” The calculation for “regular rate” in each workweek is: i) all compensation earned (including all hourly pay and “nondiscretionary” production bonuses), ii) divided by the number of hours worked in that week.
Commonly, the overtime rate is 1.5 times the regular rate. In California, there are situations where the overtime rate is double the regular rate (including hours worked after 12 hours in a given calendar day).
“Nondiscretionary bonuses” include any bonus promised to the employee which is either:
A written bonus policy intended to motivate an employee to increase a defined production statistic is a nondiscretionary bonus policy.
A “discretionary” bonus would be extra pay not linked to any such incentive, contract, policy or promise. A holiday bonus is commonly considered such a discretionary and thus is not factored into regular rate calculations for the payment of overtime.
Overtime Calculation Example, with Non-Discretionary Bonus: Hourly employee “Bill Bonus” worked 52 hours last week, including 12 hours of overtime at “time and one-half.” Bill’s hourly (straight) rate is $10.00. Bill also earned a $138.00 production bonus attributable to last week.
Follow these steps to compute Bill’s total wages for the week:
Step 1. Bill’s Regular Rate Calculation
52 total hours x $10.00 hourly rate = $520.00
Bonus for the week = $138.00
Subtotal = $658.00
Regular rate = $658.00/52 hours = $12.65/hour
Step 2. Bill’s Overtime (1.5x) Wage for the Week
($12.65/hr regular rate ÷ 2) x 12 overtime hours = $75.92
Step 3. Bill’s Total Wages for the Week
Subtotal from Step 1 = $658.00
Subtotal from Step 2 = $75.92
Total = $733.92
Please see section 49.2.4.1 of the California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual for an alternative method of computing regular rate involving overtime and a bonus (available online at http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf).
If you have any questions on this or any other employment laws, please contact us or any of our other employment law attorneys.
In California, generally an employer may not have an hourly wage employee work more than five hours per day without providing that employee with at least a thirty minute meal break. However, if that worker will complete the day’s work in six hours, the worker and employer may waive that meal period by mutual consent.
In California, generally an employer may not have an hourly wage employee work more than five hours per day without providing that employee with at least a thirty minute meal break. However, if that worker will complete the day’s work in six hours, the worker and employer may waive that meal period by mutual consent.
In very rare circumstances, it may not be possible to relieve an hourly employee of all duty during the entire meal period. For example, a single worker in a coffee kiosk, a sole worker in an all-night convenience store, or a security guard stationed alone at a remote work site typically must remain on the premises at all times during their shift.
Under such limited circumstances, the meal period shall be considered “on duty,” and that eating time must be paid at the employee’s regular rate of pay.
Therefore, an on-duty meal break is only permitted when:
If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth