We are lawyers, not magicians. Yet, we have received perhaps more than our share of requests to turn back time. If only that employer client could have it all back, to start out the right way on workplace timekeeping and compensation practices.

While we cannot put the proverbial toothpaste back in the tube, we can offer some tips on avoiding future wage-and-hour litigation disasters stemming from accusations that a company required or allowed employees to work off-the-clock without paying them.

1. Understand the difference between “exempt from overtime” and “non-exempt” and ensure your human resources department is properly classifying employees. A disproportionate number of salaried, supposedly “exempt” workers means there are probably errors in need of attention;

2. You MUST pay non-exempt employees for ALL hours worked, even if management did not ask for the time to be spent or even if the work was against management’s directions. The solution is appropriate discipline for violating applicable schedule and timekeeping rules, not to withhold pay;

3. So that employees are on clear notice of those rules, ensure your handbook includes written policies that establish:

– Workers are to keep standard work schedules and not to start early or stay over without management’s written authorization;

– Off-the-clock work is not permitted;

– Employees must log their working hours accurately;

– Employees who violate hours and timekeeping policies will be disciplined;

– Likewise, managers who authorize such violations, including off-the-clock work, will be disciplined; and

– Employees need not fear retaliation for reporting any such violations;

4. Maintain written timekeeping records – either hard copy and/or computerized – that require non-exempt employees to legibly and honestly document their own daily start, meal break, and departure times and, for each pay period, to verify in writing the accuracy of their report; and

5. Ensure management is uniformly enforcing these policies and practices.

Law Offices of Timothy Bowles

In its article “New Year, New HR Ideas,” California Employer Daily recently passed on three key actions employers should consider at the beginning of the year, courtesy of James J. McDonald, Jr., managing partner of the Irvine office of Fisher & Phillips, LLP. We thought these were pretty spot-on ideas worth sharing:

“1. Get Your Handbook Ready – If you don’t have an employee handbook, have one prepared and ready to distribute at the beginning of the new year. A good employee handbook makes clear what is expected of employees. It reduces the likelihood of inconsistent application of policies that can lead to discrimination claims, and it ensures that every employee has been informed of important policies, such as the policy against harassment, employment at will and arbitration of disputes.

“2. Review Your Overtime Classifications – If the overtime exempt status of some employees seems questionable, the new year is a good time to reclassify them as non-exempt. Pay particular attention to office employees who perform mostly routine work, “leads” in manufacturing or service jobs, and retail managers who spend most of their time serving customers. Job descriptions for employees switched to non-exempt status should be revised to more accurately reflect their job duties.

“3. Consider Pay-for-Performance- Instead of granting automatic pay raises at the first of the year or on an employee’s anniversary date, consider implementing a pay-for-performance plan that ties employee compensation to job performance and/or the overall performance of the company.

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Source: California Employer Daily

Law Offices of Timothy Bowles

Must an employer pay a worker for the latter’s training hours? Like most areas of employment law, the answer is: “It depends.” The basic question is whether an employee is pursuing that training a) to become more knowledgeable and skilled at his/her current position (in which case, the employer must pay for those hours); or b) to become knowledgeable or skilled at another, advanced position, either at the company or elsewhere (in which case, it is possible employer may not have to pay for those hours). A safe rule-of-thumb is that a business will almost certainly be required to compensate an employee for hours spent training unless such training meets all of these criteria:

• The activity occurs outside of regular working hours;
• The employee knows and acknowledges attendance is voluntary;
• The training is conducted through a separate vendor and preferably outside the employer’s premises;
• The seminar, course or meeting is not directly related to the employee’s current job; and
• The employee does not perform any labor that directly benefits the employer during such an activity, i.e., the work done during training is for practice and not to produce or to support the production of the employer’s goods or services.

The absence of any one of these factors could require employee compensation. For example, even if the employee is not required to attend the training, the company will have to compensate that worker if that training is offered during that employee’s normal working hours.

The full rules can be complicated. The review of an experienced employment attorney a good idea when structuring employee training programs.

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Properly conducted employee performance evaluations can be an excellent tool for enhancing management – workforce communications. Such assessments provide administrators the opportunity to communicate their views to a worker on that person’s performance before a bad habit becomes a destructive disruption. Employees may use the process for communicating satisfaction or dissatisfaction with working conditions. Tips include:

– Fair, Consistent Process: The evaluation process should be as uniform and objective as possible, with a standard set of questions and judging criteria. Assessments that vary in thoroughness or subject matter from employee to employee or those that stray into subjective territories (e.g., someone’s taste in ties) may generate discrimination claims if person perceives unequal treatment on the basis of national origin, gender, age, religion or any of the other classifications protected by law.

– Criticism Should be Constructive: While management should not shy away from dealing with negative job performance in an evaluation, it should couple criticism with suggestions for improvement.

– Documentation: All evaluations should be in writing. Procedures and forms should provide the subject employee open opportunity to offer in writing his/her self-evaluation and as well as comment on the performance evaluations from others. Forms should include an ending section for the worker to sign as acknowledgment he/she has received the evaluation and has had the opportunity to comment, respond, etc.

– Trained Evaluators: Employers should make sure evaluators are well trained on the duties and skills of each worker’s position and to evaluate objectively the job performance of employees, avoiding extraneous questions or statements that could be construed as discriminatory.

– Appeals: Written evaluation policy and procedure should include the employee’s opportunity to appeal to senior management if that employee finds an evaluation unfair or incomplete.

An experienced employment attorney can often help management sort out the details of such policies and procedures or their application.

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A worker intoxicated or under the influence of drugs on the job can not only be detrimental to productivity, but extremely dangerous to safety of the employee and those around him or her. Maintaining a comprehensive written drug and alcohol policy – covering testing, prevention, and the handling of suspected drug- or alcohol-abuse on the job – is of course very important.

Key elements include:

• Drug Testing – California employees have constitutional rights to privacy. There are detailed court decisions defining the line between an employer’s rights to test for drugs and alcohol and the workers’ rights to be left alone. A workplace policy must accurately reflect that balance. For example, only in very tightly defined circumstances are “random” drug tests ever permitted;
• Legal vs. Illegal Drugs – Written policies should include specific definitions that describe what drugs the company considers to be illegal versus legal. Also, while a business cannot discipline an employee for use of doctor-prescribed medications (including, in California, “medical marijuana”), the policy can and should also specify an employee’s duty to inform management of such drugs if their effects pose a significant safety risk in the workplace;
• Company Culture – Some businesses periodically hold employee functions where alcohol is served. If so, the policy should establish guidelines that address such alcohol use. See also, our blog Office Holiday Survival Guide, A Risky Cocktail: Alcohol and an Employee Party. A company can and should also supply a policy with other “Company Culture” guidelines, including rules and boundaries on entertaining clients; and
• Disciplinary Action – The drug and alcohol policy also should include the standards for disciplinary actions taken should an employee be found in violation. Employers should be aware of potential issues for employees who may have rights under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act , including individuals undergoing treatment for chemical dependency.

We have helped a wide range of businesses to create and update such drug and alcohol policies or to deal with suspected or confirmed substance abuse situations. We are a phone call or email away.

Resources

Institute for a Drug-Free Workplace

United States Department of Labor

Law Offices of Timothy Bowles

Many states recognize a business’s ability to negotiate and enter contracts restricting a departing employee from taking a job with a competitor – or opening a competing business – within reasonable geographic limits and for a limited, reasonable time following the termination date. However, with very limited exceptions, such restraining agreements have been unlawful and unenforceable in California since 1872. This rule is found currently under the Business and Professions Code section 16600, which the California Supreme Court found to be “unambiguous” on this point in Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937.

On the other hand, California does recognize the right of businesses to protect their private information – including confidential customer and client listings — from public disclosure and unauthorized, competing uses. See, for example, California Civil Code sections 3426 – 3426.11. Employers can and should confirm such rights through written “non-disclosure agreements” (NDAs) with their employees.

Thus, while a company does not have the ability to limit a departing worker from immediately going to work for a competitor next door or down the street, that company can effectively limit that former employee’s ability, by court action as needed, to solicit the company’s customers for a switch to his/her new employer, as long as the business has properly protected and maintained its client list as confidential.

With the help of a qualified labor and employment attorney, a well-drafted NDA in California should strike that balance between a worker’s rights to seek new employment of his/her choosing and the company’s rights to protect its private business information from misappropriation.

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Businesses have valid interests in accessing potentially sensitive employee information as long as that access is reasonably necessary to maintain workplace safety and security. On the other hand, companies must respect worker privacy on matters that are irrelevant to administration and operations.

Clear, comprehensive written policy is essential to mark the line between legitimate company access and inappropriate intrusion into worker’s actions, communications, internet usage, data storage, and property possession and usage. For example, if a policy adequately defines the valid circumstances when management may require an employee to submit to a drug or alcohol detection process, then a worker does not have a reasonable expectation of privacy on such matters. Considerations in creating a proper employee privacy policy include:

1. Such a policy should begin with the company’s commitment to protecting employee identities and other private information except where other valid interests reasonably outweigh nondisclosure or non-inquiry. The policy should confirm the company takes employee privacy matters seriously;

2. Of course, it is essential to ensure the policy is consistent with applicable state and federal laws. For example, there are legal standards for the non-disclosure of employee social security numbers and medical information;

3. The policy should provide complaint procedures and disciplinary standards for alleged and confirmed privacy violations respectively;

4. Human resources personnel should ensure the secure storage of employees’ personal information, for example medical information;

5. The policy should specify that unauthorized persons cannot access stored personal employee information, including on any computer system;

6. The policy should include a “clean desk” provision requiring personnel to clear out or otherwise secure confidential personal information whenever they leave their work area; and

7. The privacy policy should include regular shredding of all documents and deletion of soft copy files containing personal employee data that are no longer needed and no longer within the legally required storage period. The policy should authorize human resources personnel to conduct this periodic process.

Experienced and capable labor and employment counsel can and should assist on developing an employee privacy policy that fits a particular business and its work force.

Law Offices of Timothy Bowles

California hourly workers are entitled to certain rest and meal breaks depending on how many hours they work in a given day. The basic rules: employers must provide an unpaid off-duty meal period at least 30 minutes long for every 5 hours in a workday, and 10 minute paid breaks for every 4 hours worked. Among the others:

Meal Breaks

• While employees who work over 5 hours in a day must be provided – and must take advantage of — an unpaid meal break of at least 30 minutes, workers can waive their meal period as long as they do not work more than 6 hours in the workday. Under certain conditions, workers can also agree in writing to have their meal while on-duty but must be paid in full for that time;
• Employees who work for more than 10 hours in a day are entitled to a second unpaid off-duty meal break of at least 30 minutes. Employees can choose to forgo their second meal break as long as they do not work more than 12 hours and received the first meal period;
• Employees must be free to take their meal breaks off company premises if they so choose; and
• Employees cannot be required to work during any such required meal period.

Rest Breaks

• Employees who work at least 3.5 hours in a day are entitled to a rest break;
• Rest break must be for at least 10 consecutive minutes for each 4 hours worked;
• Whenever possible, rest breaks should in the middle of each work period;
• Rest breaks must be paid;
• Employees can be required to take their rest break on company premises;
• Employees cannot be required to work during any required rest break; and
• Employees can choose to skip their rest break provided as long as their supervisors or managers do not pressure them to do so.

There are some exceptions to these laws for particular California industries, including healthcare, motion picture, and manufacturing.

Employer penalty for non-compliance is an extra hour of regular pay for each violation.

For answers to particular situations, contact a California employment law expert. See also: “How to Avoid Costly Penalties for Missed Meal Breaks.”

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When Katharyn Felicia was told that she and other cocktail waitresses at Resorts Casino Hotel were to pose for photos in skimpy new flapper costumes, she thought it was to evaluate the sexy black outfits to make sure they fit and looked right.

What the women didn’t know, she said, was that the photo shoot would determine which of them would still have jobs when the 10-minute encounter was over.

Felicia, who had been with Resorts since the day it opened in 1978 and was twice named employee of the month, was one of 15 cocktail waitresses fired last month from Resorts.

The stated reason, they say, was for “violating uniform standards.” The real reason, they suspect, is that management wanted to get rid of older women who were judged not sexy enough to fit in with the new image the casino is trying to project.

Seven of the fired waitresses are suing Resorts, claiming age and sex discrimination. The others, including Felicia, are considering legal action.

“It was very degrading to women,” said Felicia, 53. “I feel they never gave me a chance. We had no idea that photo shoot was fighting for our jobs.”

Resorts said it gave each employee a fair evaluation and said the costumes are an integral part of its rebranding effort. The casino has adopted a roaring ’20s theme after the popularity of the hit HBO series “Boardwalk Empire,” based on Prohibition-era Atlantic City’s reputation as the vice capital of the East Coast.

“A critical aspect of theming is the new costumes front-line employees will be wearing, including the new cocktail server costume,” Resorts spokeswoman Courtney Birmingham said. “This particular cocktail server costume was chosen as part of the larger plan to unveil the new Resorts Casino Hotel as a destination for fun, excitement and a one-of-a-kind experience.”

The costumes include short, skin-revealing black dresses with deep open backs. Waitresses also wear fishnet stockings and ornate jazz era hats.

“All cocktail servers were given individual consideration and the selection process was conducted in a fair and objective manner,” Birmingham said. “We empathize with the cocktail servers who lost their jobs and gave them hiring preference in other open positions at Resorts. Some took advantage of this offer and some did not.”

Attorney Kevin Costello, who represents seven of the laid-off servers, said the casino’s action was “just more of the same age and gender stereotype discrimination.”

“Apparently, a modeling agency panel of some sort has decided that the servers didn’t have the right look to continue in their jobs despite having the skills to do so,” he said.

In 2008, two former cocktail servers at Atlantic City’s Borgata Hotel Casino & Spa settled a multimillion-dollar sex discrimination lawsuit they brought against the casino. They claimed the casino humiliated costumed waitresses — known as “Borgata Babes” — by imposing weight limits, encouraging breast augmentation surgery and emphasizing looks over job performance.

Felicia told of a late February photo shoot that was so stressful it made her break out in hives as she struggled to put on a costume that fit properly. She said each of the women who had to be photographed was made to enter a small changing room with the only light coming from a small window above. It was so dark that a small mirror was nearly useless.

Costumes were strewn about the floor, and she and others had to kneel or crawl around to try to find a costume to wear.

“I was forced to get undressed in front of six co-workers, one of them being my manager,” she said. “I had no top on because you can’t wear a bra with the uniform. I had stockings on, but that’s it. It was the most embarrassing thing I’ve ever had to do.”

The costumes’ sizes were not marked. The first one she tried on was too big, she said. The second one, which she eventually wore, gave no support to her bosom.

“I did not feel I looked very good in it,” Felicia said. “I was very nervous. I broke out in hives as I was walking out onto the floor. I was losing it, I was stressing so much.”

The photographer told her she was not allowed to pose. Rather, he took pictures from three angles: with her facing forward, backward, and from the side. The photos were shot from the neck-down, with Felicia holding a sign with a number on it that would identify her once the photos were evaluated.

Although it did not happen to her, she said some co-workers were told to spread their legs a bit, or turn their rear ends toward the camera.

“It’s hard to believe that in this day and age women are still put through this,” she said. “I’m a good employee. I did my job well; many managers have told me that. I just don’t understand this. I’m still in shock.

“I understand that cocktail-serving projects sex appeal, you have to be pleasant and radiate a party atmosphere,” Felicia said. “I get that. I’ve done it for nearly 33 years. If it’s all about what men want, well, men like all different kinds of shapes and sizes.”

Copyright © 2011 The Associated Press. All rights reserved.

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