Month: May 2019

HR Consulting News–Meal and Rest Breaks

by hrconsulting14

 

Here is a situation that occurs quite frequently. We all know that in California and in many states, there is a requirement of giving employees rest and meal breaks. For example, a 10 minute rest break and a 30 minute meal break.

Take the example of the 30 minute meal break. Assume a buzzer or bell goes off two minutes before the end of the break to give time for employees to get their affairs in order and walk back to their workstations. Is that two minutes considered working? If so, the employees could argue they are shorted for the full 30 minute break. Actually, the case law is in favor of the company.

Labor Code Section 226.7(a) prohibits an employer from requiring an employee “to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” But leisurely walking back to a workstation is not “work”.

We should also be mindful of the “de minimis rule” as outlined by the U.S. Supreme Court case of Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946). The Court held that “split-second absurdities are not justified by the actualities of working conditions” and “when the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded (at page 692).

Also on point, the Dept. Industrial Relations, DLSE Opn. Letter No. 1986.01.03 (Jan. 3, 1986) states in relevant part that the 10-minute net rest time excludes “any time to walk or otherwise travel to a place of rest”.

See also Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057, 1062 [noting for purposes of the Fair Labor Standards Act that “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded”]. In that case, workers sought over time for the approximate 15 minutes per day in which they reported to work early to review a logbook, exchange information about entries, be available to relieve outgoing employees, as well as opening and closing project gates. On de minimis grounds, the court denied the employees claims.

This same fact pattern was presented in the recent case of Chavez v. Angelica Corporation. Although an unpublished opinion, it is persuasive authority because of its comprehensive treatment of the issue and the statements by the trial judge.

Similar to our case, the defendant was a California laundry plant. Plaintiff was a nonexempt employee that brought a class action for alleged violations of rest and meal breaks. Specifically, claiming the employees were not given full 10 and 30-minute breaks because of a bell system identical to our situation: it rang two minutes before the end of rest or meal breaks to allow time to walk back to a workstation (at page 28). After an exhaustive analysis, the Court held there was no violation.

It began by stating: “Initially, we note Plaintiffs are unable to cite to any case or statute holding that employers must add walking time to meal and rest break times, nor have we found any such law based on our independent research” (at p. 24).

It is also instructive to consider comments made by the trial judge. It confirmed that the employees were not performing any working duties during the walking time:

The Court: Well, I mean, there’s no — I didn’t see any evidence of anybody saying, ‘we get a 10-minute break, but we are still working,’ you know. ‘We still have to work during part of that break period,’ or, ‘we have to start working before the ten minutes are up.’ I didn’t see any evidence of any of that (at p.12).

The Court: That’s your walking time. The net — when you start talking ‘net,’ you are talking the walking time. I didn’t see any evidence of anybody saying, ‘we get a 10- minute break, but during that break, we are actually working, still working,’ you know, ‘in production.’ I didn’t see any evidence to that (at p. 14).

The Court: No matter what, whether they use the bell or don’t use the bell, you know, your case on the production workers is predicated upon this idea that walking time is somehow a violation. I don’t see — one, I don’t think there’s any per se illegality. I don’t see any basis for that argument (at p.16).

So on this particular situation, there would be no violation of the employee’s rights. Make sure the company does not require any work to be done during the break.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

HR Consulting Update: Keeping a Job Open After Returning From ADA Leave

by hrconsulting14

Consider a case in which an employee is taking unpaid ADA leave per direction from his doctor. Because the position must be filled in order to operate the business, it was filled by a floater. The question is what job needs to be offered the disabled employee after returning from ADA leave.

The EEOC and many courts take the position that a company must hold the employee’s job open as a reasonable accommodation while under an ADA leave of absence, unless doing so would create an undue hardship. Thus, if it would cause such a hardship, the person’s position can be replaced by another during the ADA leave. But even if this is the case, upon the employee’s return, there must be a good faith attempt to find a vacant and equivalent position to which he is qualified. In other words, reassigning him to another job.

But there are other HR exceptions to the requirement of offering another job upon return from disability:

  • Absence for a significant amount of time. Most reported court cases deal with a 1 to 2-year period. However, there is a case similar to ours in which only a couple months was considered an undue hardship. For example, in Walton v. Mental Health Association of Southeastern Pennsylvania,168 F3d 661 (3rd Cir. 1999), a 2 ½ month ADA leave was considered excessive and caused undue hardship to the employer. There the employee’s presence was essential and there was fear the program the employee was heading would fail for lack of funding and leadership.

 

  • Erratic and unpredictable leave. This is when the employee frequently starts and stops his or her job. This can be especially difficult from HR consulting standpoint.

 

  • Indefinite leave. This is usually when the employee will not commit and say how long they will be out or even give an indication whether they want to come back or not.

To sum up, there is good and bad news. The good news is the company can hardly operate without having a current operator and it would be an undue hardship to leave this position vacant.  There is a good argument that having the floater take over this position is proper.

The bad news, if you want to describe it that way, is that upon the return of the employee, there has to be in a good faith effort by HR to find some other equivalents job. But he needs the experience or the desire to take another job. For this reason, it is suggested the employee be emailed that his job has been taken over by another through necessity and that upon his return, offering him a couple alternative jobs if he wishes. Then let him make the decision. The email can state:

 

Dear ______________:

Thank you for providing us your doctor’s note you will remain on disability leave through _______________, 2019. As you know, your position was that of ______________. In order to maintain operations and produce product, we need someone performing that position at all times. As result, we have hired an individual to take over that job and it is no longer available.

However, upon your return, and we would be happy to offer you the following positions if you wish: __________________________________________. Please let us know your desires in this regard.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.