CA Supreme Court Clarifies “One Day’s Rest in Seven” Rule, Handing Employers a Victory

The California Supreme Court earlier today provided guidance regarding California’s statutory prohibition on “caus[ing] . . . employees to work more than six days in seven.”  In its decision in Mendoza v. Nordstrom, Inc. the Court primarily addressed two questions, both of which it decided in favor of employers.

Discussion:

Question 1: Is the California Labor Code’s requirement of “one day’s rest in seven” applied based on the employer-defined workweek, or does it apply on a rolling basis to any seven-consecutive day period?

The court held that the rule only applies to the employer-defined workweek, not on a rolling seven-day basis. Accordingly, an employer can maintain a schedule that requires employees to work more than six consecutive days as long as they provide one rest day in each workweek. For example, if an employer’s workweek runs from Sunday through Saturday (a common workweek definition, although employers are free to set different workweeks), the following schedule is permissible:

First Workweek: Rest on Sunday; Work Monday through Saturday
Second Workweek: Work Sunday through Friday; Rest on Saturday

Question 2: Can employees force or coerce employees to go without a day of rest in a workweek? Relatedly, can employees choose to forgo their day of rest?

The Court held that employers generally cannot “induce” an employee to forgo his or her day of rest.  An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.  As the court puts it – employers are to maintain “absolute neutrality” as to whether employees exercise their right to a day of rest, but are not liable simply because an employee chooses to work a seventh day in the workweek.

California’s Labor Code does allow employers to require employees to work all seven days in a defined workweek in limited circumstances, such as cases of emergency; to protect life or property from loss or destruction; or where agreed upon in a collective bargaining agreement.  Additionally, when the nature of the employment reasonably requires that the employee work seven or more consecutive days in workweek, the employer may require such work, if the employee receives at least an average of one day’s rest per seven days over the course of the calendar month.  Finally, in circumstances where the employee works a seventh day in the workweek, the employer will be required to pay time-and-one-half for the first eight hours worked, and double time for any additional hours.

What This Means:

The California Supreme Court has confirmed that employees have the flexibility to schedule employees to work more than six consecutive days. However, if employees are permitted to work all seven days within the employer-defined workweek, employers should consider implementing processes to (i) provide clear notice to employees of their entitlement to a rest day; and (ii) secure documentation to demonstrate that employees are independently choosing to work the seventh days, and that they are not doing so as a result of employer inducement.

Source: Paul, Plevin, Sullivan & Connaughton
Employment Law E-Update May 8, 2017

How to Fire Someone for Poor—but Undocumented—Performance

Paul Falcone

By Paul Falcone, www.PaulFalconeHR.com

Marilyn is a human resources director at a large construction company and is faced with an almost impossible task: Fire a director of operations with 13 years of tenure and no record of prior corrective action or negative performance reviews.

The reason for this untenable situation? The division general manager and the vice president of operations both want the director gone, albeit for different reasons. The general manager sees significant backups in production, primarily due to the director’s failure to lead his team effectively. The recently hired vice president has heard that the director is “throwing him under the bus,” telling anyone who will listen that he’ll see to it that the vice president fails and is ultimately terminated for not knowing his job well enough.

Marilyn was already aware of the bad blood between the vice president and the director: The director had wanted that vice president role when it became available the prior year, yet the company opted to hire someone from outside who had transferable skills but lacked exact experience in the field. The director resented that he had to train his new boss in the nuances of the job and demonstrated his anger by expressing it to other members of the team on as many occasions as possible.

Marilyn reasoned that substandard job performance and inappropriate comments about the boss were valid reasons for discipline but that terminating someone over the age of 40 with no history of discipline problems would likely result in a lawsuit that could be difficult to defend. She shared her concerns with the general manager, both in terms of the potential cost of a failed lawsuit (per the employment attorney’s estimate) and the six- to nine-month window of lost time and disruption for the rest of the team that could result from investigations, depositions, a hearing and ultimately a trial.

Still, no dice; the general manager was adamant that the director had to go immediately. Marilyn needed to come up with some options to spare the organization a lawsuit while maintaining a fair relationship with the director.

“It’s not a matter of getting sued that’s at issue,” said Sam Sherman, employment lawyer at Tencer Sherman LLP in San Diego. “What counts is getting sued on your terms, not theirs. And in this case, a lawsuit filed by a director after 13 years of service with the organization and with no progressive discipline on file has risk.”

Option No. 1: The Position Elimination

The general manager suggested eliminating the position and laying off the director. He reasoned that would be the cleanest and quickest option, which Marilyn immediately recognized as a problematic strategy.

“Position eliminations only make sense if you have no intention of backfilling the role for at least a year, which is how long many states’ statutes of limitations run for wrongful termination claims,” Sherman said. That clearly wouldn’t work because the company desperately needed to have someone in that director role—they just didn’t want the incumbent serving in that capacity.

Option No. 2: The Separation Package

The general manager then instructed Marilyn to give the director of operations a separation package. He gave her budget authority to offer a nine-month separation deal, which is consistent with what the director would have received had his position been eliminated. However, Marilyn wisely responded that she had no leverage to entice the individual to accept a package. If he opted not to accept the company’s offer or demanded more than nine months, she had no follow-up action plan to negotiate with. The general manager’s response, “If he doesn’t accept the package, then fire him.”

“That path poses substantial risk to the company,” Sherman cautioned. “First, if the director chooses not to accept a package now and the company retains him but fires him three months later, a plaintiff’s attorney will likely argue that the company’s ultimate decision to terminate him was the result of a pattern of discrimination that began when it offered the separation package. Further, if you terminate the director for not accepting the package now, then you’ve got a prima-facie wrongful termination claim on your hands that will likely be tied to age discrimination and any other protected characteristics under federal and state law, which have the potential to carry punitive damages.”

Marilyn is at her wit’s end: The general manager shows no fear of a lawsuit and little regard for the director being treated respectfully in light of his many years of service.

Option No. 3: The Final Written Warning

“There’s one fact in this situation that provides Marilyn with a lot more latitude than she realizes,” said Kim Congdon, HR executive and former chief people officer for Fullscreen Media in Playa Vista, Calif. “Conduct infractions provide employers with much more discretion than performance transgressions in terms of issuing corrective action.”

In the situation at hand, a written warning may be the logical progressive disciplinary step for the ongoing performance problems that the director is experiencing in not leading his team effectively or suffering under such a huge backlog of delayed projects. But a final written warning would be the logical company response to a director who is constantly “throwing his boss under the boss” by telling others that he’ll ensure that the vice president fails and is ultimately fired for incompetence.

“With that final written warning in hand for conduct, combined with a written warning for substandard job performance, the company now has leverage in the game,” Congdon said.

Marilyn keeps the general manager and vice president informed of her revised action plan and meets with the operations director to issue the final written warning as follows:

“We’re issuing you a final written warning for misconduct and insubordination regarding your ongoing public comments about the vice president’s incompetence and your willingness to see him fail and ultimately be fired. We’re also issuing you a written warning for the ongoing performance challenges you’re experiencing, as evidenced by the ongoing backlog of projects that are holding up our sales team from closing their business transactions. I know you don’t want to risk losing your job after putting 13 years into the company because that could certainly complicate your future job search, and while I can’t promise anything, I could ask for a separation package for you that would mirror what you’d get if your position were to be eliminated—nine months of pay plus continuation of benefits plus outplacement.

But that’s strictly up to you. I’ll support your decision whether you opt to remain with the company under the final written warning or request a separation package. I just want you to have some choices at this point and not feel like you have no options. You do have to be careful, though, because any further actions on your part that could be construed as insubordination or misconduct could result in immediate termination, and there won’t be a separation package as a safety net. Why don’t you sleep on it and let me know tomorrow what you decide and whether I could help with that separation package option?”

The next day the director of operations returned to Marilyn’s office and requested the separation package. He realized he wasn’t happy in that role and hadn’t been for the past year since he was passed over for the promotion to vice president. Further, he agreed that he couldn’t risk being terminated for misconduct or insubordination because it could damage his chances of launching a successful job search. Finally, he felt the company was giving him a way out that preserved his dignity, especially since he would be able to craft his own message to his peers and subordinates about why he was resigning.

“Going from zero to final written warning for a serious conduct offense isn’t uncommon,” Congdon said, “and provides the company with options it wouldn’t normally have if the issues were solely performance-related.”

Yes, there was a risk that the director wouldn’t ask for the severance package and might opt instead to remain with the company, despite the final written warning. But Marilyn successfully convinced the general manager and the vice president of operations that this was a critical record to have if the company was to enter into litigation. They agreed and allowed her to proceed with her plan.

With this clean result in hand, the general manager and vice president of operations were able to separate the director’s employment immediately, while the director walked out the door on his own terms and in a position to heal the wound and move on with his career. Relative to the other options available, Marilyn is secure in knowing that she accomplished her mission of balancing the organization’s needs while maintaining the director’s dignity and self-respect.

Is Comp Time on its Way? The Working Families Flexibility Act Passes the House

Work Life Balance

On May 2, 2017, the U.S. House of Representatives passed H.R. 1180, the Working Families Flexibility Act of 2017. Commonly referred to as the “comp time” bill, H.R. 1180 would amend the Fair Labor Standards Act to allow employees to choose paid time off or “comp time” instead of cash wages as compensation for working overtime hours. Among other provisions, the bill sets forth parameters on how much paid time off employees can accrue and how and when employees can cash out their banked time as cash wages.

A companion bill has been introduced in the U.S. Senate, but it is unclear when—or even if—the Senate will address the matter.  However, Senate majority leader Mitch McConnell and U.S. Senate Committee on Health, Education, Labor & Pensions (HELP) Chairman Lamar Alexander are both co-sponsors of the Senate bill. The White House has also indicated its support for the bill. Of course, in order to pass the Senate, 60 votes will first be needed to overcome a filibuster in the Senate—a likely difficult task. Proponents of the bill argue that providing employees with the option to take their overtime compensation in the form of paid time off gives them much-needed flexibility, while opponents claim that it provides a way for employers to withhold overtime pay that would otherwise be owed to employees.

We will continue to track this bill and update you with new developments as they occur.

Article written by James J. Plunkett, Senior Government Relations Counsel, Ogletree Deakins, Washington, D.C.

California Industrial Wage Orders Have Been Updated

New Posting Requirements

The California Industrial Wage Orders have been updated to reflect the current state minimum wage changes.

As a reminder, all employers in California are required to post their industry Wage Order.  Because there are 17 different wage orders, depending on your industry, these are NOT included in the typical federal and state “all-in-one” poster.  The updated posters can be found here and include the date 12/2016 in the bottom left corner.  It should be noted however, that they posters will still be called Wage Order 4-2001, Wage Order 5-2001, etc.

If you have questions or are unsure of your industry, please call SDEA at 858-505-0024.

There Are New Limits On Disciplining Employees

There Are New Limits On Disciplining Employees
By Paul Falcone

Team working together

Nina is a one-person employee and labor relations department for a midsize hospital. Her job can get rather busy because line managers reach out to her often for support in holding their employees accountable.

Nina’s approach to employee discipline stems from her sense of fairness and her strong work ethic: While she understands that employees sometimes face challenges that might get in the way of their work performance, she believes they nevertheless need to perform at a minimally acceptable level to earn their pay. Yet she also recognizes that recent changes in employment law may constrain her ability to discipline or terminate workers, and it can be a challenge to explain this to the line managers who look to her for guidance and wisdom.

“In truth, the National Labor Relations Board [NLRB] has taken an exceptionally aggressive stance in terms of limiting employers’ rights to discipline workers for certain infractions,” said Rich Falcone, a shareholder at law firm Littler Mendelson in Irvine, Calif. (no relation to the author). “Employers are well-advised to take caution before doling out corrective action or moving to termination for certain offenses.”

A case in point: Employers historically have had a huge amount of discretion when it comes to dealing with employee misconduct. Depending on the level of egregiousness, employers could typically move to immediate termination (known as a “summary dismissal”) or issue a final written warning even for a first offense. “The NLRB, however, in recent years has curtailed an employer’s discretion in handling certain conduct-related offenses, even for nonunion employee populations,” Falcone said. Consequently, employers need to ensure that their policies and practices are not only consistent with state law but with the National Labor Relations Act as well.

 Disciplining Employees for Insubordination

Historically, determining what was considered egregious misconduct or gross insubordination toward a supervisor was fairly straightforward. But the NLRB recently has taken liberal interpretations of what constitutes “protected, concerted activity” on wages, hours and working conditions, especially during times of union organizing. “In fact, recent NLRB rulings protect workers who used profanities against their supervisors when complaining of their company’s inability or unwillingness to change certain working conditions,” Falcone said. “Likewise, workers’ use of company e-mail on nonwork time as well as their Facebook posts and tweets are considered protected under Section 7 of the National Labor Relations Act.” In certain cases, the NLRB reversed the terminations and ordered reinstatement with back pay.

In the not-too-distant past, workers who demonstrated anger or defensiveness toward co-workers or a general inability to work with others could be disciplined for their failure to create and sustain an inclusive work environment. While this is still applicable today, courts have recently ruled that mental health issues that impact personal behaviors may invoke the protections of the Americans with Disabilities Act (ADA). Likewise, remember that communicating with others and even thinking and concentrating are considered “major life activities” under the ADA. Employees who have challenges here could obligate a company to engage in the ADA interactive process and ask how it could help them meet the essential functions of the job.

According to Falcone, “the reasonable accommodation standard might include, for instance, assessing the nature of the employee’s limitations, assessing the individual’s ability to perform the essential functions of the job and identifying possible accommodations when it comes to confrontational personalities in the workplace.” With claims of both disability discrimination and failure to engage in the ADA interactive process on the rise, it’s likely worth additional consideration before jumping to progressive discipline and ultimately termination for what could be considered by some courts a reasonable accommodation issue related to mental health.

Disciplining Employees for Excessive Absenteeism

A number of states and cities have enacted paid-sick-leave laws that require employers to provide a set amount of protected sick time each year (for example, 24 hours) that workers can use to tend to their own or a family member’s health care needs. If such sick-leave laws are present in your state or city, they severely limit your right to discipline workers for excessive unscheduled absenteeism or tardiness, provided the absences are covered by the protected sick-leave reasons.

“Specifically, that means that you can’t count those occurrences of unscheduled absenteeism or tardiness as violations of your company’s attendance control policy,” said Jacqueline Cookerly Aguilera, a partner with law firm Morgan Lewis & Bockius LLP in Los Angeles. Further, you can’t necessarily ask for a doctor’s note or require advance notice as a condition of using sick leave, nor can you apply disciplinary measures when employees pattern their time off around regularly scheduled weekends or holidays.

“In short, the recent passage of multiple states’ and cities’ paid-sick-leave laws make it even more difficult for employers to hold workers accountable for the excessive use or abuse of paid-time-off or sick-leave policies,” Cookerly Aguilera said. Even no-call/no-show policies, in which an employer terminates a worker who fails to call in or report to work (typically for 72 hours), may be under scrutiny by certain courts. The courts’ argument is that the employer may have an affirmative obligation to determine why the no-call/no-show incidents occurred. “Further, certain courts have argued that a refusal to grant a reasonable accommodation because of an inflexible reliance on company policies and rules may violate the ADA and similar state laws, which could challenge any hard and fast applications of policies such as no-call/no-show,” Cookerly Aguilera said.

And the most challenging recent twist in the law? Assigning additional time away from work as a reasonable accommodation once the 12 weeks of leave available under the Family and Medical Leave Act is exhausted. “The EEOC [Equal Employment Opportunity Commission] and courts routinely view extended leaves of absence as a reasonable accommodation under the ADA and similar state laws,” Cookerly Aguilera said. The question, of course, is what is a reasonable period of time for a particular extension of leave to help a worker prepare to return to work?

“There’s no clear answer for this, and each case must be evaluated on its own merits,” Cookerly Aguilera said. “Employers are advised to focus on how that one individual’s absence negatively impacts co-workers who must make up for the gap and whether this negative impact constitutes an undue hardship for the employer.”

Ask for Help

Nina, the hospital employee, is well-advised in today’s legal climate to amplify discussions with legal counsel about her company’s approach to issues like these that in the past were relatively straightforward to administer. Of course, the legal climate may change because of the new White House administration, but that will surely take time, just as it takes time to develop new case law that influences employer practices and policy interpretations. For now, a conservative approach to these and other workplace matters is the wisest path toward healthy, transparent and legally defensible employee and labor relations practices.

Paul Falcone (www.PaulFalconeHR.com) is an HR trainer, speaker and executive coach and has held senior HR roles with Paramount Pictures, Nickelodeon and Time Warner. His newest book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom, 2016), focuses on aligning front-line leadership teams and on key employee retention.
Paul will be presenting “What You Wish Your Frontline Managers Knew About Leadership and What To Do About It” on Friday, April 7th at 9 am at 211 Connections Center in San Diego.  To learn more and register, click here.

 

It’s Madness, I Tell You

March Madness Photo

It’s Madness, I Tell You
By Jennifer Jacobus, PHRca, SHRM-CP

So, here we are, that time of year when all we hear about is March Madness; this brings out the competitiveness in your employees and also brings out office gambling pools which can then result in loss of engagement and productivity.

I read an article that suggested that employers embrace office pools; which I thought was interesting since it is a form of gambling and therefore illegal.  Having said that, I think the article made some good points.  With technology what it is today, employees are no longer reliant on the office desktop for their basketball scores and highlights and as a way to check their brackets—employees now have direct access through their smartphones and tablets.  This makes it hard to restrict and control the updates and the pools.  The article also suggested that office pools are good morale boosters and could be used as team-building exercises with an emphasis on camaraderie.

I think that this can make sense if done properly which means taking the monetary exchange out of the equation.  Revisit your gambling policies and if office pools will be allowed, modify your policies to reflect prohibition of on-line gambling.  Also make sure your policies are clear with regards to performance and productivity standards, a time and place for promoting activities that are not directly related to work and make sure that it is clear that these office pools are strictly voluntary—employees should not feel forced or obligated to participate in any way.

Non-monetary prizes are a good way to handle office pools.  An article in Business and Legal Resources suggests including the proceeds of a tournament or pool to charity or provide other non-monetary prizes such as tickets to other sporting events.

New M-274 Handbook for Employers (I-9 Handbook)

Form I-9

 

USCIS provides guidance for employers in the form of a 69-page document, Handbook for Employers, Guidance for Completing Form I-9, (Employment Eligibility Verification Form).  As a reminder, this 69-page handbook provides instructions, tools and tips as well as frequently asked questions to complete a two-page form.  All employers are required to be using the newly updated I-9 form as of January 22, 2017.

The USCIS has now come out with the newly updated M-274 that can be downloaded here.

Rules and Recommendations Regarding Office Romances

Workplace Romance Photo

Rules and Recommendations Regarding Office Romances
By Tyler Jensen, SPHR, PHRca, SHRM-SCP

Valentine’s Day is quickly approaching!  While many businesses are gearing up for a fantastic season of flowers, candy, gifts, meals and romantic weekends, this can be a dreaded time for Business Managers and HR professionals.  As plans are made and new relationships are formed, we often lose sight of the joy in the “Season of Love” in the workplace.  Here are some ideas about preparing for Valentine’s Day without becoming the office curmudgeon.

Issue #1—Oversharing in the Workplace

While employees are discussing their romantic plans, other employees and customers may be caught in the exchange with less enthusiasm.  “I just want to finish this task,” Lonely Larry says to himself.  “I don’t need to hear about your perfect relationship and perfect date.”  And, in this case, Larry is correct.

When possible, ask your coworkers to celebrate their affection outside of the workplace.  The practical concerns are many, with third-party Harassment or Hostile Workplace concerns topping the list.  If employees meet and share this away from work, the chance of these claims hitting the workplace is lessened.

Individual employees or even small cliques may require private coaching meetings with management as a preventative measure.  Rather wearing your Management blinders throughout the season, address the business-related concerns ASAP in a tactful and private way.  The message to the happy employees is not an admonishment; rather, encourage those positive feelings to continue BUT ask that discussions occur outside of the workplace.  Tailor the message from “no more!” to a kinder “not here.”

Issue #2—Vocal and Open Resentment of Others

This is the mirror opposite issue from #1.  “Keep it to yourself—we’re trying to work here,” says Jaded Joe (or Jane), nearly shouting.  Many employees only share small portions of their personal lives with co-workers and create solid distinctions between work and personal.

In this case, a good approach is similar to the tactics used in Issue #1:  Meet with the employee or employees privately, acknowledge the awkwardness and provide tools to respectfully address the oversharing coworkers. An additional step in this case is to clearly ask about any offense, language usage, or similar behavior that can lead to a third party harassment claim.

Issue #3—Coworkers are Now a Romantic “Item”

Romance and relationships can be wonderful at times, but relationships sometimes end.  Increasingly, people are meeting and dating at work.  The obvious rationale is due to the time we spend together.  Again, rather than ignore or “putting on the Management blinders,” discuss your concerns with the couple in a private setting.  Consider meeting offsite if you can manage the privacy concerns.

The items to discuss in this meeting are specific and important.  While Management doesn’t have rights to regulate normal off-work behavior, you do have various obligations to the workplace and the business itself.  Suggested topics to cover include:  Prohibition of open physical expression while in the office (PDAs or Public Displays of Affection, as we used to call them), limiting those who “need to know” about the relationship in the workplace, keeping to work while at work and not spending excessive time together while neglecting work tasks and duties, and consciously avoiding any behavior at work that may lead to a third party harassment complaint.  Many organizations have begun to use a “Love Contract” that states these things and attempts to shield the business in the event the relationship ends.
SDEA can provide the verbiage for this contract – contact us if you would like to learn more.

Issue #4—Supervisors who Date Coworkers and Direct Reports

This is the most serious concern of all, when Sue Supervisor dates a coworker or even…a direct report!  When one of the dating coworkers is a Supervisor or member of Management, the business may find itself exposed to a classic “quid pro quo” (this for that) Harassment claim during or after the relationship.  For this and many other reasons, Management needs to engage and act more quickly in these cases.

First and foremost, meet with the Supervisor or Manager privately to talk about any policy concerns, especially where a direct report is involved.  Most workplaces prohibit or restrict relationships with a direct report.  In that case, you’re transferring one of the parties to another job, or even asking one party to voluntarily resign.   You don’t need an old-school “no fraternization” policy, but consider many of the most likely possibilities:   Claims of favoritism, bias or discrimination; Sexual Harassment claims in the “quid pro quo” vein;  Past practice conflicts if allowed to continue; Pay inflation and others.

This is a case where legal counsel should be consulted early and often.

Happy Valentine’s Day!

Recap of the Employment Law Update – January 26, 2017

IMG_5567

 

Recap of the Employment Law Update – January 26, 2017
By Tyler Jensen, SPHR, PHRca, SHRM-SCP
Contact Tyler at tjensen@sdeahr.org

SDEA’s 37th Annual Employment Law Update (ELU) took place on January 26th, 2017, and was filled with important updates from three of San Diego’s most dynamic and successful Labor and Employment Law attorneys, Chris Olmsted, Rich Paul and Lonny Zilberman.  From an “HR Geek” perspective, I left with a clear idea of what to expect in 2017, 2018 and beyond relating to employment law, legislative actions and updates in case law.

Here are some of the key takeaways from the ELU:

Based upon 2016 actions and trends, watch for the following in 2017:

  • Jury trials are a “coin toss.” Stay out of court as much as possible.  When complaints become lawsuits, juries continue increasing awards to employees.
  • Thorough investigations are an employer’s first and best defense. If you or your team regularly find yourselves favoring the company point of view, seek outside assistance with investigations.
  • Discrimination claims are on the rise, and California continues to expand protected categories. Specifically, listen for claims of discrimination related to age, disability, accommodation, gender (any/all) and all forms of sexual harassment and hostile workplace.
  • Retaliation claims continue to increase as do the plaintiff awards.
  • Expansion of California’s Equal Pay Act to include race and ethnicity as well as gender is a signal for employers to prepare for future action.
    • Expect this to become a “hot button” issue; salary history is no longer a “bona fide factor” in determining appropriate salary at hire AND for similarly situated internal employees, ie. justify why your janitors make more than your maids.
    • Train managers, leaders and executives on Equal Pay Act requirements and burdens.
    • Consider appointing an Equal Pay Act point person as an internal watch person.
    • Reporting for Affirmative Action employers will begin in 2018—prepare now. Review similarly situated employees, understand differences in pay, justify internally what you can, and correct what you cannot justify as a preventative measure.
  • Prohibitions regarding Criminal History Inquiries for applicants continue to expand. Check applications, background investigation requests and other requests to ensure compliance.  Where inquiries are appropriate, they are appropriate after a formal job offer (sequence of events remains an issue of awareness.)
    • Remember the EEOC warned employers against blanket prohibitions of past convictions due to disparate impact a few years ago.
    • Existing laws and rules prohibit inquiries or consideration of arrest records, diversions, dismissals and misdemeanor marijuana convictions more than two years ago.
    • Now in 2017, inquiries into or findings revealing juvenile conviction records are prohibited from consideration.
    • Expect the “Ban the Box,” meaning asking about criminal history, to continue – possibly expanding statewide.
  • Check “Zero Tolerance Policies” in handbooks and other written policies. Rich Paul provided many examples where these and other policies were judged unlawful including:
    • Confidentiality rules
    • Employee Conduct rules
    • Rules restricting employees speaking to media
    • Use of company logo
    • Photography, recordings and personal electronic devices (including smartphones)
    • Restrictions on leaving work, being absent from work and automatic dismissal/ job abandonment
    • Conflict of Interest rules

For those who were not able to attend the Employment Law Update, SDEA is now offering the Employment Law Update Program book for sale electronically and as a hard copy.  The Program is 146 pages in length and includes all materials presented by attorneys Chris Olmsted, Rich Paul and Lonny Zilberman.  The book and the electronic version are available for $30 each, or $45 for a set of both the book and the electronic copy.  To request your copy, call 858-505-0024 or email info@sdeahr.org.

Even more satisfying for my “HR Geek” is the second half of the book: 60 pages of case notes and rulings on subjects referenced by the presenters.  This will be on my required reading list for a few months – make sure it is on your reading list too!  And, as always, we are here to offer HR consulting services when you have questions or are in need of a trusted HR advisor.  You can reach us at at 858-505-0024 or via email at info@sdeahr.org.

 

California Supreme Court Holds that Employers Must Relieve Employees of All Work During Rest Periods

California Supreme Court Holds that Employers Must Relieve Employees of All Work During Rest Periods and that Security Guards Who Were Required to Remain “On-Call” During Their Breaks Were “Performing Work” In Violation of the Law

On December 22, 2016 the California Supreme Court issued its decision in a high profile rest period case—and it is not good news for employers.  The Court determined Labor Code section 226.7 and Industrial Welfare Commission Wage Order No. 4-2001 require that employees be relieved of all duties during rest breaks, and that security guards who simply remain on call during rest breaks are “performing work” in violation of the law.

A group of security guards brought a class action lawsuit against their employer alleging the employer’s policy of requiring them to be “on call” during rest breaks violated California law.  While the guards were required to carry a radio, pager or phone in case of an emergency, there was no evidence that any guard’s break was ever interrupted.  The trial court granted summary judgment for the employees, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call.  The employees also moved for summary judgment on the issue of damages, seeking unpaid wages, interest, penalties, attorneys’ fees and an injunction.  Finding no triable issue as to whether the employer was subject to approximately $90 million in statutory damages, interest, penalties, and attorneys’ fees, the court granted the motion and subsequently awarded attorneys’ fees and costs.  The employer appealed.  Finding the trial court relied on an incorrect interpretation of law, the court of appeal reversed.

The California Supreme Court disagreed, and reinstated the $90 million judgment against the employer.

First—relying in part on the “liberal construction of regulations to favor the protection of employees” and the plain-meaning of term “rest”—the Court held that under Labor Code section 226.7 and Wage Order 4-2001 workers must be relieved from all work duties and “free from employer control” during their ten minute rest periods.  The Court held that “on duty” rest periods essentially required employees to perform “free” work.

Second, the Court held that under these same provisions, security guards who remain on call during rest breaks are indeed “performing work” in part because “a rest period means an interval of time free from labor, work, or any other employment-related duties,” and employees must be “freed from employer control over how they spend their time.”  The Court held, “[a]n employer cannot satisfy the obligations under Wage Order 4 subdivision 12(a) while requiring that employees remain on call.”  Despite the seemingly innocuous nature of requiring security guards to remain on call during their ten-minute rest periods the Court held that “a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks.”  As examples, the Court cited an employee’s inability to take a ten minute walk, inability to attend to personal matters such as phone calls or pumping breast milk.  The Court seemed to think merely asking employees to remain on call and respond if needed during breaks rendered them incapable of doing anything else during that period of time.  In short, the Court held that employees on a rest break must be completely free from employer control.

Practice Tips: In light of this holding, employers need to make sure employees do not perform any work during rest periods.  Employers should eliminate any requirement that employees remain available to perform any work-related tasks during rest periods.  Employees certainly must not be “on call” or “on duty” during rest periods. Employers should essentially treat rest periods as if they are meal periods and “relinquish all control” of employees including allowing them to leave the employer’s premises.

If a rest break is interrupted by an urgent work matter, the employee should be authorized and permitted to take an uninterrupted rest break at the earliest opportunity.  Employers should ensure it is both a policy and a practice to “replace” any missed or incomplete rest periods—even if the employee is only involved in a minimal task during a ten minute rest period.  In other words, if an employee does not obtain a full ten minute rest period that is completely “free from employer control” the employer should provide a “make-up” rest period or pay the statutory penalty.  Employers should also consider reviewing company policies and/or handbooks to ensure the description of rest periods is consistent with the California Supreme Court’s interpretation.

Source: Augustus v. ABM Security Services, Inc. (SC S224853/B243788, December 22, 2016)