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HR Consulting News–Meal and Rest Breaks

May 13, 2019 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 Although an unpublished opinion, it is persuasive authority because of its comprehensive treatment of the issue and the statements by the trial judge.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.

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HR Consulting News–Working 7 Consecutive Days

April 25, 2019 by hrconsulting14

We are all familiar with the classic 40 hours per week and Monday through Friday scheduling. But there are situations, from an HR consulting point of view, in which the employer can legitimately ask for work seven days in a row if there is a bona fide business reason.

California Labor Code Section 551 states: “Every person employed in any occupation of labor is entitled to one days’ rest therefrom in seven.” In turn, Labor Code Section 552 states: “No employer of labor shall cause his employees to work more than six days in seven.”

Those sections do not apply “when the nature of employment reasonably requires that the employee works seven or more consecutive days, if in any each calendar month the employee receives days of rest equivalent to one day’s rest in seven (LC 554)”. For example, this would apply to retail employees who have to work longer consecutive days during the Christmas holidays.

From an HR standpoint, these provisions do not apply “to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof (LC 556).”

Two employees of Nordstrom sought to enforce these provisions in the California Supreme Court case of Mendoza v. Nordstrom (2017). For example, one of them claimed that they were forced to work 11 straight days. But in that time period, there were periods in which the work was less than six hours/day.

The court noted that the labor code sections above did not have a specification of civil penalties. This means the plaintiffs sought their penalties under the Private Attorney General’s Act (PAGA), which requires $200 per employee for each pay period, together with attorney’s fees and court costs, in which the labor code violation occurs.

For these reasons, HR consultants should be aware of these exceptions.

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.

HR Consulting News Update–Religious Affiliation on Job Application

February 7, 2019 by hrconsulting14

The question is whether there can be an optional question inserted in job applications as to whether Muslim individuals or similar persons would have a religious objection to delivering alcohol.

A quick check of the EEOC website indicates the following relevant passage:

Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law . . .[O]ther employers (for example not churches or other religious organizations) should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor.

In other words, a direct inquiry as to one’s religion would be prohibited. But what if you mention on employment applications, without asking about one’s specific religion, that they might be delivering alcohol products and asking if they would have a problem doing so? Could you be sued for doing so?

Unfortunately, it could go either way. Here are the two arguments:

There is no discrimination against religion–you are actually honoring it. You are simply giving them a “heads up” there may be difficulties with their beliefs in such deliveries. Isn’t that something that a prospective employee would like to know before joining the team?
You cannot ask an applicant about their religious beliefs, but here you are indirectly doing so. If they say they cannot make the deliveries, it is because of their religious beliefs so in essence you are making that inquiry. If they cannot do so, it gives you the right to deny the application. It may also come out in discovery that you have a number of Muslim workers that have objections (which you do not like) and that is the reason you have posed the question.

If you do want to broach the subject in the application, you might consider the following:

Optional Question: We do not make inquiries into an applicant’s religious denomination, religious affiliation, places of worship or religious holidays. Nor do we discriminate for or against any religion. We honor the religious beliefs of our employees, seek to accommodate them, but at the same time do not want you to be uncomfortable in performing certain services. As a disclosure, part of your duties may involve the lawful delivery of alcoholic beverages or marijuana paraphernalia. Without disclosing any religious denomination or belief, is this something you will not be able to do?

Reporting Time Pay: HR Consulting News

January 21, 2019 by hrconsulting14

Assume hypothetically that a company requires some of its employees to carry cell phones after normal work hours and be on call to return back to the facility as needed. Assume further they have to be available to take the call in 15 minutes and return to the office within 20 minutes. From an HR perspective, to what extent should these employees be paid for the time returning back to the premises ?

Obviously, all time spent after returning to the job site is paid at the regular hourly rate. But what about returning or driving back to the job site? This HR question would be the time after receiving the call, getting one’s affairs in order and driving back to the facility.

Cal. Code Regs., tit. 8, § 11040, subd. 5(A), known as Wage Order 4, addresses this issue and states:

Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.” (Cal. Code Regs., tit. 8, § 11040, subd. 5(A); known as Wage Order 4.).

Applied to our situation in which the employees have a regular eight-hour shift, this means that in addition to the actual hours spent back at the job, there would be an additional four hours of compensation at the regular hourly rate, if when called back, the employee works less than four hours. So, if one of your employees is called back and only spends two hours, he would be paid those hours plus an additional four. Think of it as a form of penalty. In other words, if the employee goes to all the time and effort of being brought back to work, he would get at least a half day’s wages.

And just the opposite: if the employee back at the job gets at least four hours, he would not get any reporting time pay.

A case directly on point is Aleman v. Air Touch Cellular (2011) 202 Cal.App.4^th 117. One of the plaintiffs was a customer service representative of Air Touch stores that sold cell phones and accessories. From time to time, the plaintiff was on call and called back on weekends to attend business meetings. Applying Wage Order 4 above, the court found that the employees were not entitled to the additional report time compensation.

It is also a good idea for HR professionals to insist upon the filling-out of strict time cards to make sure the Company knows exactly how many hours are spent.

Sign Language Interpreters for Places of Public Accommodation–HR Consulting News

January 17, 2019 by hrconsulting14

As an HR consultant, assume you have a client that operates a place of public accommodation, namely a fitness gym. A member, who is deaf, inquires as to your Pilates class. Specifically, they are requesting an interpreter to receive instructions in the class and answer questions. What are the legal requirements?

Typically, the only statutes require interpreters are for state and local government facilities–public places (as opposed to private for-profit companies), such as courts.

And, the ADA requires accommodation to members of the public using government facilities (42 USC 12101—12213); inapplicable here.

The ADA also covers places of “public accommodation”, which does apply to the gym. This is to accommodate one’s disability or serious medical condition. Under 28 CFR 35.160-35.164, there is a requirement of providing “effective communication” to those with a disability. Research indicates this applies to such auxiliary aids (for example sign language) for people that are deaf or have hearing impairment, as opposed to foreign language interpreters.

On the other hand, if the individual is disabled and there is a need to communicate with her in order to accommodate, one could make the argument of needing an interpreter.

It should also be noted that such classes involve more “doing” than “talking”. In other words, the participants are watching the physical movements of the instructor, and little if any verbal instructions may be required. In this sense, a member can hardly allege damages or the inability to participate.

One option, which is quite expensive, is to have a sign language professional on staff. Possibly a better alternative is to have the disabled individual take a private class where the instructor has access to written materials, a person who takes notes, and sign language videoconferencing. There are number of companies, at approximately $3.50 per minute, that will remotely via video give such sign language instruction.

In any event, it would not be a good idea from HR standpoint to completely ignore the requests for assistance by such a deaf or hard to hear person.

Reporting Time Pay: HR Consulting Update

January 15, 2019 by hrconsulting14

Consider the following scenario that may arise from time to time in your HR department. Your California company operates a facility that requires some of your employees, as the need arises, to return back to the job site either in the evenings or weekends on an on-call basis. As such, certain employees must must carry a cell phone, be able to respond within 15 minutes, and return to the job site within approximately 20 minutes. Do you have to pay them for the time of traveling back to the job site?

HR consultants know that obviously, all time spent after returning to the job site is paid at the regular hourly rate. But what about returning or driving back to the job site? This would be the time after receiving the call, getting one’s affairs in order and driving back to the facility.

Cal. Code Regs., tit. 8, § 11040, subd. 5(A), known as Wage Order 4, addresses this issue and states:

“Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.” (Cal. Code Regs., tit. 8, § 11040, subd. 5(A); known as Wage Order 4.).”

And just the opposite: if the employee back at the job gets at least four hours, he would not get any reporting time pay.

It is also a good idea for your HR department to insist upon the filling-out of strict time cards to make sure the Company knows exactly how many hours are spent.

HR Consulting News: Forcing an Employee to Use PTO After an Unpaid Absence

January 14, 2019 by hrconsulting14

Bottom line: In California, an employer can force the employee to use PTO after an extended unpaid leave of absence.

From a federal standpoint, the FLSA does not regulate PTO, so there are no requirements either way. But what about California?

In California, employers cannot implement a “use it or lose it” policy for PTO. In other words, if you don’t use your accrued PTO each year, it will be lost for the next year. However, the DLES does allow “caps”. In other words, you can only carry forward a certain number of hours. It is suggested that you use 1.75 times the annual accrual rate.

But our case is different. The employer is not implementing a “use it or lose it” policy.

In California, as long as the employee has received advance notice (typically at least 90 days with provisions in the Employee Handbook), the employer can force use of PTO after taking an unpaid absence. The provision has to be reasonable. An unpaid absence of 10 days or more seems reasonable.

Note also, it is common to require employees to use PTO in conjunction with FMLA.

Exception: Under the California Pregnancy Disability Leave Act, the company cannot require a person to use PTO for a pregnancy disability leave. The employee is given the option to use it if she wishes.

Remember, in “use it or lose it” litigation, the employee does not want to take leave for a certain period of time, but is being forced to do so by the employer–or lose it. Here we have a totally different circumstance. The employee has voluntarily decided to take leave, although unpaid. The employer is not forcing anything.

California Alternative Workweeks; 4/10 Compressed Work Schedule: HR Consulting Update

January 9, 2019 by hrconsulting14

A California employer through their HR department may have a desire to institute a new 4/10 policy–instead of working the traditional 8 hours for 5 days a week, work 10 hours for 4 days a week. In total, the hours will not exceed 40 hours per week. Here are the guidelines.

Can you pick the days?

The first question is whether the employer is locked into a specific weekly schedule. For example, only allowing Monday, Tuesday, Wednesday and Thursday. Could there also be another variant, such as Tuesday, Wednesday, Thursday, and Friday? The answer is yes. In fact, as seen below, the employer can offer a “menu” of options. Two of those options could be as stated above.

Law:

California Labor Code Section 511(a) provides in relevant part:

“Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose.”

In turn, a work unit is defined as follows

“(i) For purposes of this section, “work unit” includes a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this section is met.”

Thus, the requirements are as follows:

This must be regularly scheduled by the HR department. In other words, the employees in the unit must have this schedule on a regular or ongoing basis. You cannot be sporadic.
You must create a special unit or department.
All employees of the unit or department will be subject to these rules.
The employer should start by preparing a written notice of the intent to adopt the alternative workweek schedule. This should detail the new schedule. If 5% of the affected employees primarily speak a language other than English, the notice must be in that language as well. The Notice should also talk about how the arrangement might affect their wages and benefits. Presumably there will be no change therein because it is still a 40 hour workweek.
You can propose a single alternative schedule or a “menu” of different options. Each employee can choose whatever menu they wish. And the employees may switch between the different schedules without putting it to an additional vote.
Employees must vote and agree upon the schedule by secret ballot. Two thirds of the affected employees must vote in favor of the arrangement. The election is at the company’s expense and during regular working hours.
All the employees shall continue to receive their regular rate of hourly pay.
Overtime shall be payable only if the hours exceed the alternative work schedule, namely more than 40 hours per week.
Your HR representatives must report the election results to the California DLSE within 30 days.
If these procedures are not followed, the election is invalidated and the employer may be required to pay overtime after eight hours per day. HR consultants therefore caution their employers to be careful with this compliance.

HR Consulting News–Service Dogs

January 6, 2019 by hrconsulting14

A common question recently is to what extent you have to accommodate a service animal or dog. Bear in mind that there is a difference between a service dog which is used by the disabled and an emotional support dog by non-disabled people who simply want the comfort and convenience of having their animal near them. For purposes of an example, assume you operate a fitness center.

Let us look at the HR law that may be applicable federally.

FEDERAL ADA

Bottom line: the ADA requires accommodation only for service dogs that are necessary to support one disability. It is not address or require emotional support dogs. Thus, the members dog may be banned.

A company may not discriminate against someone with a disability in a place of “public accommodation”. Hence, the ADA (ADA Title III Technical Assistance Manual; III-1.2000 Public Accommodations) applies to “places of exercise or recreation (e.g. gymnasiums, health spas, bowling alleys, and golf courses).”

However, the ADA requires accommodation only for service dogs. In other words, if an individual has a disability and the dog is trained to perform certain life functions, which would not apply to animals used for emotional support or mere comfort. This would include such assistance as pulling a wheelchair, leading the way for blind persons, retrieving dropped items, alerting a person to sound, reminding a person to take medication, or pressing an elevator button.

Parenthetically, it also appears that as to employees, there is no requirement of accommodating for service animals. The ADA has a definition of “service animal” and applies this definition to public accommodations, but Title I, applying to employment, has no such definition and no specific guidelines for employers to follow as to service animals.

Note also that emotional support dogs may be required if you are renting an apartment or house under the Fair Housing Act or traveling on an airplane under the Air Carrier Access Act. So if you are in HR consultant or department, be careful to follow these rules.