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.

Law Offices of Timothy Bowles
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.”

Law Offices of Timothy Bowles
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.”

Law Offices of Timothy Bowles
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.

Law Offices of Timothy Bowles
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.

Law Offices of Timothy Bowles
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.

Law Offices of Timothy Bowles
July 27, 2011

California’s Department of Labor Standards Enforcement website explains that a non-union employer has full discretion: a) to close the business on any holiday; b) to give employees the day off for any particular holiday; or c) to pay employees taking a holiday off. In this state, hours worked on holidays are not considered differently from any normal work day. Thus, as long as no overtime is involved, the law does not require any extra rate of pay for holiday work.

Union employees may have special terms under collective bargaining agreement. Many employers may provide (and thus must provide) holiday pay by policy but, again, it is not a legally required benefit.

Contact an experienced employment law attorney if you would like assistance issuing a policy covering time-off and pay for holidays.

Law Offices of Timothy Bowles
July 8, 2011

Keeping Up with Changing Employment Laws

A recent California Employer Daily article touches on an important employment law subject — the unanticipated pitfalls HR managers and employers face, including from the shifts and refinements in the state and federal leave laws.

Key leave laws—the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)—only apply to businesses with 50 or more on payroll.  However, other leave rights apply to far smaller companies.  For example, California’s pregnancy leave rights apply to businesses with five or more employees.  Full time and part time workers apply in the calculation of total employed.

Whichever leave laws apply, employers should be cautious about strictly enforcing employment policies that limit employees’ unpaid leaves of absence.  For example, some businesses carry policies that permit employees to take a specific amount of additional time off without pay after using up a medical or family leave under FMLA or CFRA.

As we have reported previously See “Say ‘ADAAAAHHH!’”, employers are obligated under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) to explore reasonable workplace accommodations for disabled workers.  Thus, a disabled employee might successfully challenge the above set-maximum leave policies on the ground that such strict application does not constitute an attempt at reasonable accommodation. Thus, employers should consider revising such “additional leave” policies to permit case-by-case examination and flexibility.

An experienced employment lawyer will be able to assist you in developing such legally-sound workplace policies.

24 June 2011

June 24, 2011