One of the reasons I like employment law is that it continually changes. In contrast, most of the principles of real estate law date back decades, and in some cases 100 years.
This difference is probably due to the fact that attitudes toward work and employee rights have changed drastically over the last 50 to 75 years and California has been at the forefront of change for much of that time.
The downside for employers is you have to keep up with what the law is. Otherwise, you will be vulnerable to lawsuits, civil penalties and other evils that come with the title of employer.
On July 22, the California Court of Appeals in San Diego made a decision that will make life a little easier for employers. A number of employees sued Brinker Restaurant Corporation, a chain that operates dozens of California restaurants, including Chili's, Romano's Macaroni Grill and, until recently, Cozymel's.
The employees claimed they didn't get the meal and rest periods required by the California Labor Code. The company settled some of the claims through the California Department of Industrial Relations, Division of Labor Standards Enforcement, or DLSE.
Other issues ended up in a class action lawsuit. One of the complaints was that the company would schedule employees for lunch after the first hour of work and then when they worked another seven or eight hours after that they wouldn't get another meal break.
Others said they were unable to take the two 10-minute breaks that hourly employees are entitled to. The California Wage Orders, regulations set out by the Industrial Welfare Commission, that cover nearly all California employees state that:
1. Employees are entitled to a paid 10-minute rest period “per four hours or major fraction thereof” and it should be in the middle of a work period “insofar as practicable” except that an employee who works less than 3.5 hours in a day need not have a rest period.
2. Employees are entitled to a half-hour unpaid, off-duty meal period for every five hours worked in a day.
An employer who fails to follow meal and break period rules must pay the affected employees an hour of premium pay for each day when the employee is denied his or her meal and break periods, in addition to any wages or overtime for the time worked. The employer also can be subjected to other penalties for violating wage-hour regulations.
The DLSE, the agency charged with enforcing those rules, has taken the position that employers must schedule a half-hour unpaid lunch break after every five hours of work, and must force employees to stop work for that half-hour. Employers also must ensure that employees can take a 10-minute paid break as close as possible to the middle of a four-hour work period.
In the Brinker case, the Court of Appeals contradicted the DLSE's position in issuing the following holdings:
1. Rest periods can be waived by the employee as long as they are not coerced. If the employer enables the employee to take a 10-minute break and the employee fails to do so, the employer is not liable.
2. Meal and break requirements are based on the full day's work, not on the number of hours worked in a row. So if the employer schedules a half-hour off duty meal period after the first half-hour and the employee then works seven hours straight, the employer has complied with the law and is not liable for a one-hour premium pay penalty.
3. Meal periods, like break periods, need only be provided by the employer, not ensured. That means if the employer genuinely makes a half-hour off duty meal period available, and the employee comes back five minutes early, the employer is not liable for a penalty. To hold otherwise, said the court, would give employees incentive to break the rules in order to earn more pay.
Finally, the court repeated another common sense rule, if an employee works off the clock and the employer has no reason to know about that time, the employer hasn't violated any rules when it fails to pay for that time.
These rules apply to employers of all sizes in California, so all employers would do well to have clear written policies about meal and break periods, as well as a requirement that employees submit complete and accurate time records.
This difference is probably due to the fact that attitudes toward work and employee rights have changed drastically over the last 50 to 75 years and California has been at the forefront of change for much of that time.
The downside for employers is you have to keep up with what the law is. Otherwise, you will be vulnerable to lawsuits, civil penalties and other evils that come with the title of employer.
On July 22, the California Court of Appeals in San Diego made a decision that will make life a little easier for employers. A number of employees sued Brinker Restaurant Corporation, a chain that operates dozens of California restaurants, including Chili's, Romano's Macaroni Grill and, until recently, Cozymel's.
The employees claimed they didn't get the meal and rest periods required by the California Labor Code. The company settled some of the claims through the California Department of Industrial Relations, Division of Labor Standards Enforcement, or DLSE.
Other issues ended up in a class action lawsuit. One of the complaints was that the company would schedule employees for lunch after the first hour of work and then when they worked another seven or eight hours after that they wouldn't get another meal break.
Others said they were unable to take the two 10-minute breaks that hourly employees are entitled to. The California Wage Orders, regulations set out by the Industrial Welfare Commission, that cover nearly all California employees state that:
1. Employees are entitled to a paid 10-minute rest period “per four hours or major fraction thereof” and it should be in the middle of a work period “insofar as practicable” except that an employee who works less than 3.5 hours in a day need not have a rest period.
2. Employees are entitled to a half-hour unpaid, off-duty meal period for every five hours worked in a day.
An employer who fails to follow meal and break period rules must pay the affected employees an hour of premium pay for each day when the employee is denied his or her meal and break periods, in addition to any wages or overtime for the time worked. The employer also can be subjected to other penalties for violating wage-hour regulations.
The DLSE, the agency charged with enforcing those rules, has taken the position that employers must schedule a half-hour unpaid lunch break after every five hours of work, and must force employees to stop work for that half-hour. Employers also must ensure that employees can take a 10-minute paid break as close as possible to the middle of a four-hour work period.
In the Brinker case, the Court of Appeals contradicted the DLSE's position in issuing the following holdings:
1. Rest periods can be waived by the employee as long as they are not coerced. If the employer enables the employee to take a 10-minute break and the employee fails to do so, the employer is not liable.
2. Meal and break requirements are based on the full day's work, not on the number of hours worked in a row. So if the employer schedules a half-hour off duty meal period after the first half-hour and the employee then works seven hours straight, the employer has complied with the law and is not liable for a one-hour premium pay penalty.
3. Meal periods, like break periods, need only be provided by the employer, not ensured. That means if the employer genuinely makes a half-hour off duty meal period available, and the employee comes back five minutes early, the employer is not liable for a penalty. To hold otherwise, said the court, would give employees incentive to break the rules in order to earn more pay.
Finally, the court repeated another common sense rule, if an employee works off the clock and the employer has no reason to know about that time, the employer hasn't violated any rules when it fails to pay for that time.
These rules apply to employers of all sizes in California, so all employers would do well to have clear written policies about meal and break periods, as well as a requirement that employees submit complete and accurate time records.