Premium Joomla Template by HostMonster Reviews

8 Questions an Employer Should Ask Before Taking an Adverse Employment Action

September 11, 2012

As seen in the West Virginia Chamber’s Human Resources Journal

A wrongful discharge suit can be very costly to your company. These suits involve back pay; reinstatement or front pay until retirement; damages for humiliation and embarrassment; attorney fees; and in some situations, punitive damages. It’s not uncommon to hear of jury verdicts far exceeding $1 million for an individual plaintiff. Attorney fees payable to plaintiff’s counsel can often be assessed, which is on top of the verdict and can easily cost $300,000 to $500,000. Such cases not only expose the company to large monetary risk, they can be very disruptive to both production and morale. 

Read more: 8 Questions Employers Should Ask

The Continuing Importance and Impact of
E-mail Retention and Destruction Policies

By Ola A. Nunez  *  
       In a time where the use of social media technologies, like Facebook, Twitter, and LinkedIn, are playing an increasing role in employment litigation, the threats offered by e-mail usage are often considered an afterthought or perhaps forgotten altogether. Yet, with the ubiquitous nature of e-mail in the workplace, some employers fail to fully consider or appreciate the potentially harmful consequences e-mail use can have on the workplace and throughout the course of litigation. Indeed, as with anti-harassment and anti-retaliation policies, a well-drafted e-mail usage policy is becoming the sort of policy that should be revisited and updated over time or, for newer businesses just implementing general policies for the first time, drafted correctly from the start. 

Read more: Email Retention & Destruction

 California Supreme Court Rules in Brinker

by Carl Borden, Assoicate Counsel, California Farm Bureau Federation

The California Supreme Court on April 12 issued its much anticipated opinion in Brinker Restaurant Corporation v. Superior Court (Hohnbaum). While most of its unanimous opinion addressed how a trial court should analyze issues in determining whether to certify a lawsuit as a class action, the Court answered these practical and vexing questions for employers and employees:

  • Must an employer merely provide a meal break to employees, or must it ensure that its employees actually take such breaks?
  • How many meal periods must be provided, and when during the workday must they be provided?
  • How much rest-period time must be authorized, and when during the workday must rest periods be authorized?

Duty to Provide Meal Periods: The Court concluded that under applicable California laws and regulations, “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Summarizing an employer’s duty in this regard, the Court said:

“The employer satisfies its obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry…. [T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay….”

Number and Timing of Meal Periods: The Court held “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.”

In so holding, the Court rejected the plaintiff employee’s claim that an employer must additionally provide a meal period no later than five hours after the end of each meal period. Under the rejected theory—nicknamed the “rolling five-hour requirement”–for example, an employee who took his first meal period after having worked only two hours of a nine-hour shift would be entitled to a second meal period after working no more than five hours after the first meal period. In other words, under the rejected rolling five-hour requirement, the employer would have to provide a second meal period even though the employee had worked only seven of a total nine hours on that workday.

Rest Periods: The Court held that under the pertinent order of the Industrial Welfare Commission (IWC), “[e]mployees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”

The Court further held that employers must “make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” In the context of an eight-hour shift, as a general matter, “one rest break should fall on either side of the meal break…. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.

What It Means For Employers: The Court’s holdings on these issues provide employers with much needed and welcome clarity of their obligations under California laws and regulations to provide employees with meal periods and rest periods. This is especially important to employers because they face substantial monetary liability for failing to provide employees with those meal periods and rest periods. Specifically, an employer must pay an employee one hour of premium pay at the employee’s regular rate for each workday on which one or more meal periods were not provided, plus one hour of pay for each workday on which one or more rest periods were not provided.

But despite the Court’s holding in Brinker that an employer needn’t insist that employees take their meal periods (just as an employer needn’t force employees to take their authorized rest periods), an employer may decide for good reason to require employees not to work during their meal periods and rest periods. Doing so removes any doubt that employees were in fact provided with those breaks and were not discouraged or impeded from taking them. Doing so thus undermines any claim by employees—or, more likely, ex-employees—that they are entitled to premium pay for having been denied those breaks.

In one especially interesting passage that may be a bit difficult for one to reconcile mentally, the Court said: “[A]ctually relieving an employee of all duty… transforms what follows into an off duty meal period, whether or not work continues.” (Italics added.) In a connected footnote, the Court stated: “If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’” The footnote concludes by noting that “hours worked” includes “all the time the employee is suffered or permitted to work, whether or not required to do so.”

Accordingly, by relieving an employee of all duty for a meal period but then allowing the employee to work during it, an employer “suffers or permits” the employee to work and thus that time is compensable as hours work. Nonetheless, the meal period is an “off duty” meal period because the employer relieved the employee of all duty and is merely allowing—as opposed to requiring—the employee to work during it.

Consistent with this passage and footnote, where an employer, despite having relieved an employee of all duty for a meal period, lets the employee work during it, the employer should record that time as an off-duty meal period while also counting the time as hours worked. A notation on the employee’s time card that the employee chose to work during the employee’s meal period should suffice.

Odd as doing so may seem, this approach is also consistent with the requirement in the Records section of the IWC orders that meal periods (other than those during which operations cease) be recorded. (An on-duty meal period meeting the requirements specified in the IWC orders should similarly be recorded, again while of course counting the time as hours worked.)

Further buttressing this recommendation is this passage in the concurring opinion in Brinker by two justices: “If an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.  This is consistent with the policy underlying the meal period recording requirement, which was inserted in the IWC’s various wage orders to permit enforcement.” Time records showing meal periods—worked through or not—will help an employer establish an affirmative defense to an employee’s claim that the employer did not provide the employee with those meal periods.

Employers of agricultural employees covered by IWC Order No. 14 are cautioned that Brinker’s holding rejecting the “rolling five-hour requirement” might not apply to that order’s unique meal-period provisions. The change in the law on which the Court based that rejection did not apply to IWC Order No. 14, and the conforming amendments made by the IWC to its other orders were not made to IWC Order No. 14. Accordingly, a court may at some point conclude that IWC Order No. 14’s meal-period provision does require an employer to authorize a meal period after each work interval of no more than five hours.

One way to comply with a rolling five-hour requirement under IWC Order No. 14 would be to authorize and permit the first meal period of a workday to occur immediately after employees have worked five hours. That way, even if employees eat a snack or meal earlier than that, the five-hour work period before a second meal period would have to be authorized and permitted will start to run at the end of the first authorized meal period–whether taken or worked through–rather than from the end of earlier snack or meal break.

Assume, for example, that Order 14 employees start a 10-hour workday at 7 am. At 9:30 am, they take a 20-minute break to rest and eat. This break would not be their meal period but would be their rest period, even though it is double the length of a rest period that must be authorized and permitted. They resume work until 12 noon–five hours into their workday. A meal period is then authorized and permitted, with employees being relieved of all duty. But as is common in agriculture, the employees choose not to take the meal period but instead work through it, with some resting for a few minutes. As discussed above, this is still their meal period and should be recorded as such in the employer’s time records, with the time being treated as compensable hours worked. At the end of the meal period–12:30 pm–the employees have worked five and one-half hours so far in the workday. They then work for another two and one-half hours – until 3 pm – when they are authorized and permitted to take a second rest period. They then return to work for another two hours–to 5 pm–when work ends for the day.

This type of schedule complies with the requirements of IWC Order No. 14 as long as employees, individually and collectively, are truly relieved of all duty for their rest periods and meal periods, with any work they do during them being of their own free will. As the Brinker Court cautioned: “[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks…. The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”





The EDD offers the Employment Determination Guide (DE 38) to help business owners determine whether a worker is an employee or an independent contractor. Make sure your workers are classified correctly.


Operating Without Written Job Descriptions?
Proceed at Your Own Peril

February 22, 2012

by Julie T. Bittner  *

Many, if not most, human resources personnel and in-house counsel, along with supervisors and managers who deal with employee requests for accommodations or work restrictions, have long realized the value and importance of written job descriptions. When determining whether an employee can perform the essential functions of a particular job, having a written job description does not just make for a compelling exhibit at a hearing or trial – it can make the difference between winning and losing a lawsuit. Written job descriptions are likely to become even more important in defending against a disability claim in light of the ADA Amendments Act of 2008, effective January 1, 2009, which expanded the class of individuals entitled to protection under the Americans with Disabilities Act (ADA).

Read more: Job Descriptions - Operating Without

Interviewing The Pawn Stars Way

By James Holland and Michael Mitchell  *

Viewers of the popular television show "Pawn Stars" (The History Channel) know that recently the owner, Rick Harrison, and his father, "the old man," have been interviewing applicants for the night shift. Here is their exchange when the old man sat in on one of the interviews:

Read more: Job Interviews Do's & Don'ts

Performance Reviews as Plaintiff's
Exhibit A: What to Include and What to Keep Out

By Bethany C. McCurdy, Esq.  *

                If you can't say something nice, then don't say anything at all! That's what our mothers always told us, right? The waitress comes and asks how our food is, we say "fine," even though our burger is overcooked and the fries are cold. When someone asks how you are, you say, "fine," even though you are exhausted and have been fighting off a cold for a week. Well, when it comes to employee performance reviews, taking mother's advice and claiming everything is "fine" is not necessarily the best approach.

Read more: Performance Reviews as Plaintiffs


Warning to Employers Laying off Employees

Spanish Radio Station 107.1 Message   

Rob Roy, President/General Counsel of the Ventura County Agricultural Association sent this message to us: Yesterday, the Association received an e-mail from one of its members commenting on a commercial on the local Spanish radio station 107.1 which was advertising legal services and communicating the following message:

Read more: Seasonal Lay-off - Final Pay Due

DIR launches Labor Enforcement Task Force

Oakland – The Department of Industrial Relations (DIR) announces the Jan. 1 launch of the newly created Labor Enforcement Task Force (LETF). LETF is a collaborative effort between state agencies to combat the underground economy and to improve California’s business environment where legitimate employers can thrive.

Read more: Labor Enforcement Task Force

Labor Commissioner addresses misleading business solicitations from the “California Labor Compliance Bureau”

Officials of the California Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement (DLSE/ Labor Commissioner’s Office) announced today that a group calling itself the  “California Labor Compliance Bureau” has reportedly distributed misleading business solicitations requiring immediate payment of a “processing fee” of $275 for labor-related postings. The group is not a government agency and does not have any affiliation with the Labor Commissioner’s office.

Read more: DLSE Warning: Misleading Solicitations