Monday, June 20, 2011

Supreme Court rules that Wal-Mart doesn't have "common policy" in discriminating against women

Big news today for anyone watching class action discrimination cases: the Supreme Court has issued a ruling in Dukes v. Wal-Mart, a case that argued Wal-Mart had a company-wide policy of discriminating against women. The Los Angeles Times has a good overview of the case and today's ruling here. Because the case argued that all female employees were affected, some estimates put the number of class members as high as 1.6 million.

Key to this case was the argument that statistics showed a company-wide pattern of male employees being promoted (and paid more) than their female colleagues. The Court found that this was not enough, because store managers played a role in hiring and firing decisions, meaning each employee's experience was not necessarily the same. Without a written policy confirming the discrimination, the Plaintiff class could not proceed with the lawsuit.

What does this mean for you? You probably don't have 1.6 million female employees, but the lawsuit serves as a useful reminder of how complicated and expensive discrimination cases can become. State and Federal law both prevent discrimination based on "protected classes" (race, gender, etc) but under California law, the list is longer and might not be as obvious as you thought. The California Department of Fair Employment and Housing has a primer on California discrimination laws that is worth ten minutes of your time and could save you trouble down the road: read their Equal Rights 101 section here.

If you are concerned about discrimination claims, the time to act is before employment termination or promotion. I am happy to talk to you about protecting your business from employment claims of any kind, and can recommend steps you can take to prevent discrimination claims going forward.

Tuesday, June 14, 2011

Meal breaks and rest periods: nonexempt California employees must get both, or you will pay the price

The most straightforward of California's wage and hour laws is also one of the easiest to fall foul of. Most employers know nonexempt employees have a legal right to take certain breaks during the day. Most employers also know that it can be hard to get employees to break for lunch or stop half way through a deadline project to take a ten minute rest break. This hits small businesses especially hard: if you only have one or two employees, having 30 minute meal periods in the middle of the day can be disruptive and lose you valuable business.

However, enforcing meal breaks and rest periods is one of the smartest business decisions you can make.

In United Parcel Service v. Superior Court (Allen) the Court of Appeal ruled that employees who don't get a meal break and rest period during the work day are entitled to two premium payments: one for a missed meal break AND one for a missed rest period. This means that under the law, you must pay an additional hour of pay for each missed meal break, and an additional hour of pay for each day that a rest period is not provided. Under this latest interpretation of the law, you would have to pay employees for ten hours a day, even if they only worked eight hours. If you don't have a meal break and rest period policy, now is the time to get one.

California Meal Breaks 101: any employee working for more than five hours per day must have a meal break of not less than thirty minutes. If the employee works a total of six hours or less in a day, employee and employer can agree to waive the meal break. If an employee works more than ten hours a day, a second meal break must be provided unless the employee works a total of twelve hours or less, took the first meal break, and the employee and employer agree to waive the second meal break. Meal breaks do not have to be paid.

Note that you have to relieve an employee of all duty during the meal break, or it doesn't count. This means no telephone calls, no errands for work and no quick photocopies - otherwise, the thirty minutes starts over again. Similarly, you can't require an employee to remain on site for lunch unless you agree to pay them for their meal period. There are limited exceptions to this (for example, if you only have one employee, in certain categories of employment such as a lone security guard at a remote location). Don't count on the exception, and if in doubt, consult with an attorney.

California Rest Breaks 101: California nonexempt employees are entitled to a ten minute paid rest period in the middle of each work period. A good rule of thumb is one in the morning, one in the afternoon for a standard eight-hour employee. If the employee doesn't work more than three and a half hours, you don't need to give them a rest period. Unlike meal breaks, you can require employees to remain on site for a rest period - but like meal breaks, if the employee does ANY work during the rest period, it doesn't count. The rest break must be ten consecutive minutes.

If an employee works through their meal break, or doesn't get a rest period, the smart thing to do is to pay them for the penalty hour. Check time cards (it's a good idea to add language having the employee certify that they took all meal breaks and rest periods) and if in doubt, pay the extra hour penalty wage and notify the employee, in writing, that they must take the statutory meal breaks and rest periods in future. It could save you from some costly wage and hour litigation; prevention, in business, is always better than cure.

Read more about Meal Breaks here.

Read more about Rest Periods here.

Contact me to learn more about protecting your business from wage and hour claims.

Thursday, June 2, 2011

School's out for summer: what you need to know if you plan on hiring high-schoolers

Remember those long, hot days of summer when you were in high school? If you were lucky, you had a summer job to fund beach days and road trips (or even save for College). Plenty of business owners got their start working for a friend or relative during vacations, whether it was in construction or filing papers in an office. Like many things in the employment realm, however, things in California have gotten a whole lot more complicated when it comes to hiring teenagers. If you are considering hiring a minor (under the age of 18) you need to follow a few simple rules to help you, and your teenage employee, comply with the law.

1. The law limits the type of work a minor can do.

Federal law designates some occupations as hazardous for minors. These include mining, working with explosives, meatpacking, roofing and excavation. For more information on occupations deemed "hazardous," click here. For potential employees under 16, the list is longer, and includes occupations such as manufacturing, operating motor vehicles, transportation, warehousing, communications, construction or hazardous farm work. As with many labor laws, California rules are tighter than the federal rules. More information on tasks deemed hazardous in California can be found here.

2. The law limits how many hours a minor can work.

During the school year, minors aged 16 to 17 are limited to four hours of work on a school day and eight hours on a weekend or holiday. The working day cannot start before 5 a.m. or end after 10 p.m. on a school day; for weekends, this is extended to 12:30 a.m. but be aware of local curfew rules.

During vacation times, minors may work up to 8 hours a day but no more than 48 hours a week. Special exceptions are available(for example, in some agricultural occupations a work day may extend to ten hours) but these are rare and only apply if the California Labor Commissioner grants an exception.

Minors 14 to 15 may only work three hours on a school day and eight hours on a nonschool day. The working day cannot start before 7 a.m. or end after 7 p.m. on a school day; over the summer vacation this is extended to 9 p.m. During the summer, minors 14-15 can work up to 40 hours per week.

Minors under 12 cannot work at all, and minors aged 12 to 13 can only work during vacations, when they are limited to eight hours each day and 40 hours per week.

Confused? This handy table from the Department of Industrial Relations might help.

3. It is (almost always) illegal to employ a minor without a valid work permit.

Unless the minor employee is your son or daughter and you are employing them to work in your own agricultural business during the vacation (and the task is not hazardous), you cannot employ a minor without a work permit. Work permits are available from the minor's school or school district. For example, Santa Barbara School District issues permits once a week. Find details here. A copy of the work permit application form is available here. If you employed the same minor last year, it is worth remembering that you need a new work permit each year. Work permits can be revoked by the school and you must comply with all applicable labor and child labor laws when employing the minor.

4. Is it worth it?

With high unemployment and an uncertain economy, you might ask whether it is worth the trouble of hiring a high school student for a summer job. As with all hiring, taking a moment to ensure you have followed the rules is important - but the benefits can be significant. If in doubt, think back to your own summer job and the opportunities someone gave you, and play it forward. Every business is different, and the information above is intended as an overview of the law, rather than a detailed primer. If you want to know more about how the laws governing child labor in California apply to you and your business, contact me. I offer free consultations to employers in Santa Barbara, Ventura, San Luis Obispo and Kern Counties, and if appropriate, I will work with your business to draw up a minor hiring policy.

Summer jobs and minor work permit resources:

Statement of Intent to Employ Minor and Request for Work Permit [LINK]

California Department of Education - Work Permit FAQs [LINK]

California Department of Industrial Relations Child Labor Handbook [LINK]

Wednesday, June 1, 2011

Supreme Court upholds Arizona immigration law targeting employers

LA Times: Supreme Court upholds Arizona immigration law targeting employers. (Link)

While Arizona immigration law is different from California law, there are still things you need to do to protect yourself when hiring a new employee. Under the Immigration Reform and Control Act of 1986, an employer is required to verify a new employee's legal right to work in the United States. The law requires that a new employee must complete an Employment Eligibility Verification Form I-9 before starting work. The employer must complete the second part of I-9; there are also requirements for re-verification. The employer is responsible for getting this done and for verifying documents that support the legal right to work. Failure to comply (even if you are not in Arizona) carries penalties of up to $5,500 per worker, with additional fines for failing to keep proper I-9 records and, if you submitted an I-9 knowing or suspecting that the employee's paperwork was not sufficient to show they had a legal right to work in the United States, penalties for document fraud.

To find out more about Employment Eligibility Verification, visit the USCIS website by clicking here.


California employment law offers unique challenges to employers and employees. By drawing together resources and new developments in one easy-to-access location, these updates are designed to help you navigate the maze of wage and hour laws, retaliation claims, ADA and FEHA rights and responsibilities, workers compensation requirements and the world of hiring, firing and employee retention.

As an attorney with a practice dedicated to helping small businesses, government entities and nonprofits, I am committed to helping you access the information you need - but nothing in this blog is intended to replace the informed advice of an attorney. If you need to speak to an employment lawyer on the Central Coast, I offer free thirty minute consultations to clients in San Luis Obispo County, Santa Barbara County, Ventura County and Kern County, and if I can't help you, I will do my best to refer you to someone who can.