Monday, December 19, 2011

Time clocks - friend or foe?

With very few exceptions, under California employment law nonexempt employees must have a 30 minute meal break within five hours of starting work if they work more than six hours a day, and a ten minute rest period for each four hours worked.

The rest periods must be paid, the meal break can be unpaid, and you should have employees record their "out" and "in" times for each meal break so you can be sure they are really taking the time off. How to record the time? Many larger employees use time clocks, either a punch-in-punch-out analog version, or a more modern electronic timekeeper system that tracks employee hours. Easy, right? Well, like everything about being an employer in California, the answer isn't simple.

First, meal breaks must be 30 minutes long. Time card show a 25-minute meal break? Under the law, that does not count because it is not the statutory 30 minutes of "being relieved of all duty" and you may well be subject to a labor code penalty (one hours pay for each missed 30 minute break). While a time clock can be a good way to make sure employees don't arrive late and leave early, the real cost can be much higher. An employee who regularly takes 20 minute breaks, grabs a sandwich and then comes back in and gets on with their job could cost you hundreds if not thousands of dollars extra.

Second, those rest periods. If an employee clocks out for a rest period, goes for a cigarette (yes, some employees in California do still go out for a cigarette) and then clocks back in, they have probably been out for around eight minutes, and on paper, have not taken their statutory rest period.

As a business owner, you probably have better things to do than police the parking lot, making sure smokers linger over their cigarettes. Forcing employees to take 30 minutes of unpaid lunch every day can be just as onerous. There are answers, however, and like many things about California employment law, a few steps taken now can save you money down the line.

If you use a computerized time clock system, find out if you can set it up not only to record the time an employee leaves and returns for lunch, but to prevent them clocking back in before 30 minutes has passed. Do the same for rest periods - include a clock out and a clock in time, and if you can, bar them from clocking back in before the ten minutes is up.

If you use an older analog time clock, consider upgrading it. New technology could help save you money (figure one short lunch or one missed lunch per employee per week = one extra hour of statutory labor code violation pay per employee, if you want to look at return on investment).

If you use old fashioned, fill 'em in time cards, take a moment to adjust the format. Make sure you add "out" and "in" times for meal breaks and rest periods, and consider adding language so that when the employee signs the time card, they are certifying that they took all statutory rest periods and meal breaks. Like everything we do as employers, it creates more work up front, but the savings on this could be considerable.

Every case is different, and this is intended as a service to clients and the community, not as legal advice or advertising. You should consult an attorney if you have a question about labor or employment law in California.

Friday, December 9, 2011

Supreme Court to rule on whether pharmaceutical sales reps are entitled to overtime

The US Supreme Court is entering the debate on whether pharmaceutical sales representatives, also known as PSRs, are "outside salesman" entitled to overtime pay under the Fair Labor Standards Act.

The Supreme Court will be reviewing Christopher v. SmithKline Beecham Corp. and a Ninth Circuit ruling that found PSRs who promote pharmaceutical products to physicians fall within the scope of the outside sales exemption to the FLSA's overtime-pay requirement. The outside sales exemption means that you do not have to pay overtime to "any employee employed in a bona fide executive, administrative, or professional capacity ... or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary of Labor).... " An "outside salesman" is defined as "any employee: (1) Whose primary duty is: (i) making sales within the meaning of section 3(k) of the Act; or (ii) obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (2) Who is primarily and regularly engaged away from the employer's place or places of business in performing such primary duty."

In Christopher v. SmithKline Beecham Corp., the Ninth Circuit rejected Plaintiff salesmens' contention that they did not "sell" to doctors, based on a federal law that prohibits direct selling to patients. The Court disagreed, noting that the PSRs were clearly selling to doctors, not patients. "Plaintiffs suggest that despite being hired for their sales experience, being trained in sales methods, encouraging physicians to prescribe their products, and receiving commission-based compensation tied to sales, their job cannot 'in some sense' be called selling." Interestingly, and at issue before the Supreme Court, is the fact that the Department of Labor classifies PSRs as promoters, not salesmen.

The conflict between Department of Labor laws and the FLSA definition is at the heart of this dispute. The confusion, unfortunately, is not uncommon, and unraveling the tangled web of labor and employment laws leaves many employers scratching their heads. If you are unsure whether your employees are exempt or nonexempt, consulting an attorney can save you thousands of dollars in unplanned wage and hour penalties.

As a disclaimer, this information is offered as a service to clients and the community, and is not intended as legal advice or advertisement. No attorney client relationship is inferred or intended. Every case is different, and you should seek legal advice from a licensed attorney.

Monday, December 5, 2011

Proposed changes to Fair Labor Standards Act could end overtime for "computer professionals"

The Fair Labor Standards Act (FLSA) governs how we define employees as exempt (not covered by overtime and meal break laws) and nonexempt (covered by overtime and meal break laws, among other things). The FLSA mandates that certain employees get time-and-a-half overtime pay when they work more than 40 hours a week, and others do not. For a helpful primer on this, see the Department of Labor Fair Labor Standards Act Advisor website.

Expanding the types of employee classified as "exempt" is a new bill introduced in Congress by Sen. Kay Hagan (D-NC), titled the Computer Professionals Update Act. Not yet law, the CPU (yes, CPU - I guess that's computer nerd humor) focuses on IT workers including network engineers, database and security specialists. Specifically, if the CPU is passed, the FLSA will be expanded to give exempt status to "any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker," working in or on "the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications."

If you have employees that fall into this category, are paid through salary or make at least $27.63 an hour, they will be covered by the new law (if, of course, it passes through Congress). That's great news if you have to call your tech support out to fix a server at 2 a.m.!

As always, this is intended as general information about employment law for clients and the community, and is not legal advice. Similarly, nothing in here is intended as an advertisement and no attorney client relationship is intended between the author and the reader. Every situation is different, and for tailored legal advice, you should consult an attorney. I offer free consultations to employers in Santa Barbara, San Luis Obispo and Ventura counties, and if I can't help you, I am always happy to give you a referral to someone who can.