Month: April 2020

HR Consulting News: California Meal Break Waivers

by hrconsulting14

The question presented is whether it is permissible for a non-exempt employee to waive a second meal break. Note: these rules do not apply to exempt employees under the category of executive, administrative or professional. This is written from the perspective of an HR consultant.

For example, the employee receives a 30-minute paid meal break before the 5th hour. But the employee continues to work for 12 hours in that particular day. Because the employee has been given the first meal break, can there be waiver of the second?

HR Departments know that California Labor Code Section 512 sets forth the general rule. An employee who works 8, 9 or 10 hours in a day, is entitled to just one 30-minute meal break. An employee who works 11 or 12 hours in the day is entitled to a second meal break unless that person waives it in writing. A person that works 13 or more hours in a particular day, must under all circumstances have a second meal break and it cannot be waived.

This is the general law of the State. However, there are special rules as to the pest-control industry. This is found in California Wage Order 5—2001. This Order applies to the “public housekeeping industry.” Under “Definitions” (P), this is defined as companies that “contract for development, maintenance, or cleaning of grounds; maintenance or cleaning up facilities and/or quarters of commercial units and living units”.

As to maintenance, this would most readily apply to handyman services or building contractors. For example, maintaining and repairing an HVAC system.

As for cleaning, this would most readily apply to maid or cleaning services, such as sweeping, vacuuming, mopping, sanitizing and other related cleaning services. The open question is whether this would apply to pest-control. Obviously eradicating, for example, rats, mice, ants and roaches would be a form of cleaning the premises. Because the penalties of not giving a meal break can be severe (one hour of wages per missed break, together with penalties and interest per Labor Code Section 226.7) an abundance of caution would classify pest-control companies under this wage order. In fact, the review of one of the attorney blogs who represents employees, emphatically states that it does apply to pest-control companies: (https://www.turleylawfirm.com/blog/pest-control-class-action-lawyer.cfm).

Section 11 “Meal Periods” of Wage Order 5 states as to the healthcare industry, employees who work more than eight hours in the day can waive in writing the second meal break. But that is the only waiver that is specified. Waivers for the pest-control industry are not mentioned.

Thus, this is subject to two interpretations:

  • Because a special exception is not stated for the pest-control industry, there cannot be a waiver of that second meal break or
  • The Wage Order does not state pest-control companies cannot give the waiver so it would be allowed as usual under Labor Code 512.

Recommendation:

Because of the vagaries of the law and the tendency of California courts to side for employees, be cautious here and lean toward being conservative.

Here are the examples:

Employee Works 8, 9 or 10 Hours in a Day: You can get away with one meal break.

Employee Works 12 or More Hours a Day on a Rush Job: Have the HR department give the employee the option of either taking a second 30-minute meal break or, if the employee would rather go home and not take a second break, give them one hour of pay at the normal rate. Once that is paid, there are no further penalties (Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) states: “If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided”).

As an HR professional, always keep these rules in mind. If you have any special fact pattern that does not fit nicely into these guidelines, feel free to give us a call.

National Lien Law can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

 

 

 

Taking Employee Temperatures for Coronavirus

by hrconsulting14

This is a guide for HR consultants before they make a decision as to whether to take employee temperatures before going to work. Here are FAQs on the subject:

 

Is it Permissible for HR to Take Employee Temperatures Before Start of Work? As a result of CDC recommendations, it is now permissible per the EEOC to do so. As of March 17, 2020, the EEOC issued the following guidelines:

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

However, a Company is not required to take temperatures.

What is Considered a High Temperature? Per CDC guidelines, 100.4 F/38 C or above.

How do you Give the Results? The actual temperature should be kept confidential and placed in a file separate from the personnel file and not broadcast others. If the employee has a high temperature, take the person aside to notify them of the reading. Also privately state the details, if any, of your decision to send the person home.

What Kind of Devices are Used? Use only a no-contact, infrared digital thermometer (forehead scanner). Traditional oral thermometers are considered too intrusive.

Who Administers the Test? Recommendation: A trained nurse or other medical professional. If not available or too costly, a management level employee or someone from the HR department. Use PPE precautions, including gowns, facemasks and gloves.

What to do if the Employee has a Temperature? A temperature alone is not indicative of COVID-19. However, it is recommended the employee be sent home for a minimum of 24 hours to be fever free. If in addition to fever, there are symptoms of dry cough, shortness of breath and chills, the employee must be sent home for a 14-day quarantine.

Can the Employee be Required to Wait in Long Lines? There are no specific guidelines, but for productivity purposes and to eliminate employee inconvenience, HR should attempt to shorten the lines by: a) having more than one entry point or b) staggering with different shifts. Make sure there is social distance while waiting in line (placing markers with tape).

Are the Employee’s Paid For the Time Taking the Temperatures? It is best to have the employees punching in when they first arrive before getting in line. That way they will not be shorted for their hours. Although the argument can be made testing is so brief in time to be de minimis, it is best to consider these preparations indispensable to employees work activity (per the FLSA) and therefore compensable.

What Records Should be Kept? Temperatures need not be recorded, but if they are, they should be contained in a confidential file. As an alternative, you can be recording “No” or “Yes” as to the temperature thresholds.

What Questions Can You Ask the Employee? Per EEOC guidance, the employer may ask an employee if he or she is experiencing any symptoms of COVID-19 or if they have been tested. This applies even if the employee has not volunteered that he or she is feeling ill. As usual, you cannot be selective who you ask as this could be interpreted as discriminatory.

The perfect time to ask these questions is right before the temperature is taken. You can ask the employee: “Have you been experiencing any of the following symptoms recently? Fever; dry cough; shortness of breath or difficulty breathing; chills; repeated shaking and shivering; muscle pain; headache; sore throat; excessive sweating; sinus congestion or new loss of taste or smell (read from a card to show it is uniform)?

Because you will be asking personal medical information, this has to be out of the hearing range of others. Put the employees in a separate line. Then one by one take an employee to a separate room immediately adjacent which is private, for the questions and temperature taking.

Do These Rules Also Apply to Non-Employees Entering the Workplace? Yes. The same rules would apply to guests, customers, vendors, consultants and other third parties. Remember that OSHA requires an employer to maintain a safe workplace and protect others from direct threats as to recognize hazards, including the virus. Place the attached form at the entrance of the facility in a conspicuous location so all persons entering can see same.

Is Employee Written Consent Required? No, but employees must be given prior notice–please use the attached form.

What if the Employee Refuses to Take a Temperature? No employee can be forced to take a temperature. If they refuse, you can bar entrance to the facility. And technically it is a violation of company policy and they can be written-up. However, termination would not be recommended. Instead, instruct the employee to stay home until they bring in a certification of negative testing through a community testing center or when government authorities have given the “all clear” for all employees to return to work.

National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

FMLA Expansion Rights Due to the Coronavirus

by hrconsulting14

On March 18, 2020 U.S. Congress passed legislation which expands employee rights under FMLA (Family And Medical Leave Act of 1993). This is contained in the Families First Coronavirus Response Act, Division C.  Under previous law, all FMLA leave was unpaid. New legislation now adds a paid leave provision. Here is a summary of the new law for HR consultants:

Effective Dates:

From April 2, 2020 through December 31, 2020.

Eligible Employees:

An employee who has been employed for at least 30 calendar days before taking the new FMLA.  Apparently, this applies to both full and part-time employees (Section 110(a)(1)(A).

Which Employers?

Companies that have fewer than 500 employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year. (Section 110(a)(1)(B).

However, for businesses that have fewer than 50 employees, there may be an exemption when the leave would jeopardize the “viability of the business as a going concern.”

Reason for Taking a Leave: The reason for taking Enhanced FMLA leave is limited to only one circumstance: based on a public health emergency, if the employee is unable to work (or telework) due to a need to care for a son or daughter under 18 years if the school or place of care has been closed (Section 110(a)(2)(A). This means it applies even to situations in which a child is 16, 17 or 18 years of age and is traditionally able to care for himself or herself. And there is no provision that the parent must be present or care for the child at all times—does that I mean a parent can watch the child per couple hours and then go off and engage in other activities? Nor does there appear to be requirement for the child stay home.

The qualifying public health emergency is the Coronavirus outbreak declared by federal, state, or local authority. There is currently a national state of public health emergency.

A school is defined as either a childcare facility, as well as elementary or secondary schools.

Unpaid Leave:

Leave is unpaid for the first 10 days. But the employee can elect to use accrued and paid vacation, PTO or sick leave (Section 110(b)(1).

Paid Leave:

From the 11th day on, the leave is paid (Section 110(b)(2)). For paid leave, the employee receives an amount not less than two thirds of that person’s regular rate of pay. But in no event shall such paid leave exceed $200 per day and $10,000 total (Section 110(a)(1)(B)).

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.