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.

December 29, 2011

Knowing When to Call for Reinforcements

There’s a saying that no-one likes lawyers … until you need one. While experienced and knowledgeable managers are usually capable of handling basic employment issues, there are pitfalls in the more complex or high stakes situations for which consultation with an employment and labor lawyer is probably a good move. The laws governing the workplace tend to change frequently. Companies can face formal complaints, liabilities and large attorney bills if potentially significant employee disputes or decisions are not recognized and resolved early. For instance:

Disciplinary Investigations and Decisions: Employers must act fairly and effectively in response to an accusation of wrongdoing. A company can face liability for failing to deal with a dishonest or destructive employee as it can for mistakenly concluding without an adequate inquiry that an innocent worker is guilty of such actions. An employment law attorney can help strike the proper balance and reach a fair decision, while management continues to maintain workplace productivity.

Threatened or Actual Court or Administrative Proceedings: If a current or former employee files or threatens to file any sort of lawsuit or complaint with a government agency, such as the U.S. Equal Employment Opportunity Commission (EEOC) or the California’s Department of Labor Standards Enforcement (DLSE), it’s almost certainly time to contact an labor and employment attorney immediately. Charges of discrimination, harassment or wage and hour violations should be taken very seriously. Mishanding any such allegations from an employee could create a further assertion of workplace retaliation.

Employee Contracts, Including Severance Agreements: An experienced lawyer can create or review and strengthen employment-related agreements, including contracts at hiring or severance releases offered at termination. Poorly worded documents can create difficult and expensive disputes over interpretation later.

Workplace Policies and Handbooks: Comprehensive and up-to-date written employee policies, commonly maintained in a manual or handbook, are the foundation for legally-sound business and frequently a critical “ounce of prevention” against claims over compensation, paid vacation and other benefits, workplace safety, acceptable employee conduct, the company’s ability to investigate into potentially private subject matters, and many other issues

November 18, 2011

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.

November 8, 2011

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.

November 8, 2011

Enhancing Employee Morale and Productivity with Workforce Competitions

In the never-ending quest to promote worker morale on the job, employers are offering an expanding range of clearly creative outlets and opportunities to escape workplace stresses.   A search around the web will reveal, for example:

• Inter-office  Chess Competition:  this U.K. insurance company holds seasonal team battles with more ground rules than soccer’s English Premier League;

• Office Ping Pong; an Australian software enterprise now dedicates a blog to its in-house table tennis competitions.  The company’s new office now features “touch screen TV that shows the office rankings, custom bat holders and special grooves to house 20 balls so you’re never short.” Become a ping-pong ninja!;

• Taco Tuesday:  employees of a California real estate firm unwind in their parking lot, complete with “gourmet food” coach of choice;

• Office Olympics: for flat fees, another Australian-based company will organize or provide do-it-yourself instructions for a workplace Olympiad, with sessions between 15 minutes and two hours.

• National Junk Food Day Cupcake Social: this past July, an on-line apparel business held its second annual “Cupcake Social” at a local bistro in honor of National Junkfood Day. As they explain: “We really weren’t kidding when we said we love our junk food around here!”

• Laughter Yoga:  the same apparel company had previously hosted a “laughter yoga” class.  The firm writes: “ For those of you who aren’t familiar with it, laughter yoga is meant to release ‘feel-good’ hormones called endorphins, which in turn boost positive state of mind, optimism and helps strengthen the immune system. With all those awesome benefits, laughter yoga is definitely nothing to laugh at!”

Of course, management must balance all this potential morale-building with steps to minimize the chances of the fun leaving the rails.  For instance, business should have written procedures and rules for:

♦    Prevention of sexual and other harassment.  See, for example, “Office Holiday Survival Guide III: Harassment Hotbed”;

♦    Prevention of accidents and injuries;

♦    Proper definitions for work and off-work hours.  Workplace “play time” may be actually be compensable work time if participation is expected or even required and if the purpose is primarily work-related.

When in doubt, let an experienced labor and employment legal firm assist you with the needed policies.

7 Oct, 2011

October 7, 2011

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.”

August 17, 2011

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.”

August 17, 2011

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.

July 30, 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