Labor and Employment

Download: Legal Alert. SB 940 and AB 2232 (1056069).PDF

Legal Alert: Governor Approves SB 940 and AB 2232

Anthony B. Daye, Esq.

Weintraub Genshlea Chediak

Senate Bill 940.

Effective January 1, 2009, Senate Bill 940 creates new wage and hour requirements for temporary service employers. Along with adding section 210.3 to the Labor Code, SB 940 also amends sections 203, 203.1, 204, 210, 215, 220, and 2699.5 of the Labor Code. Existing law requires that employers pay their employees twice during each calendar month. SB 940 creates a special set of requirements for temporary service employers with employees’ working week-to-week or day-to-day. Employees on week-to-week assignments are now required to be paid weekly, while employees working day-to-day must be paid daily. Further, employees assigned to clients engaged in a trade dispute must be paid daily. These new requirements do not apply to employees who are assigned to a client for more than 90 consecutive calendar days.

Because existing law imposes civil and criminal penalties for wage violations, SB 940 also creates state-mandated local programs to enforce these existing civil and criminal penalties for violations of the new temporary employee wage requirements.

Assembly Bill 2232.

The Digital Infrastructure and Video Competition Act of 2006 governs telephone corporations and video providers, such as cable companies, in the State of California. Under existing law, telephone corporations are required to perform background checks for all applicants for employment who would have access to the corporation’s network, central office, or subscriber premises.

Effective January 1, 2009, AB 2232 expands the current law to require video providers to perform the same background checks for all applicants for employment who would have access to the video provider’s network, central office, or subscriber premises. This requirement is also applicable to vendors and independent contractors working on behalf of telephone corporations and video providers.

If you have any questions about employee background checks, California wage and hour laws, or any other Labor and Employment Law issues, please feel free to contact any of the employment lawyers at Weintraub Genshlea Chediak: Lizbeth West, Charles Post, or Anthony Daye.

Download: Legal Alert. Brinker Decision Provides Guidance (1055970).PDF

NOTE: Since this article was posted, the California Supreme Court has accepted review of this case.

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The recent California Court of Appeal decision Brinker Restaurant Corporation v. Superior Court (4th Dist. July 22, 2008) not only takes the wind out of the sails of class-action plaintiff attorneys, it also provides some long awaited guidance for employers.

Summary of the Case and the Court’s Decision.

In Brinker, a group of hourly non-exempt employees brought a class action against the restaurant employer claiming that the employer failed to comply with meal and rest period obligations and also required employees to work off the clock. The employees specifically claimed that: 1) the employer’s practice of having employees take “early lunches” shortly after starting their shift and then requiring them to work another five to ten hours without receiving another meal period violated Labor Code section 512(a) and the wage orders; 2) they were not provided their rest periods between their second and fourth hour of work, and were not provided the rest period before the first meal period; and 3) they were required to work off the clock when they were clocked out for their meal periods.

The employees argued that the wage and hour violations were amenable for class treatment because the employer’s non-compliance with wage and hour requirements could be determined by time card records and the employer’s policies and practices. The trial court agreed and granted class certification. The employer petitioned for a writ of mandate to the court of appeal. The court of appeal issued an unpublished decision which went up to the California Supreme Court. The Supreme Court vacated the court of appeal’s original decision and transferred the matter back to the court of appeal for reconsideration. It was on reconsideration that the court of appeal concluded that the class certification order from the trial court was erroneous and must be vacated because the trial court failed to properly consider the elements of the employees’ claims in determining whether they are susceptible to class treatment. In discussing the elements of the employees’ claims, the court of appeal handed down the following encouraging pronouncements:

1. While employers cannot impede, discourage, or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;

2. Employers need only authorize and permit rest periods every four hours or major faction thereof and they need not, where impracticable, be in the middle of each work period;

3. Employers are not required to provide a meal period for every five consecutive hours worked;

4. While employers cannot impede, discourage, or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken;

5. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so;

6. Because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, [based upon the evidence presented to the trial court], they are not amenable to class treatment; and

7. Off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether [Brinker] forced employees to work off the clock, whether [Brinker] changed time records, and whether [Brinker] knew or should have known employees were working off the clock.

Reaction from the Governor’s Office and the Labor Commissioner.

Immediately following the Brinker decision, Governor Schwarzenegger issued a statement applauding the decision. The Governor said expressly:

“We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today’s decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently.” (Governor’s Statement)

Also, on July 25, 2008, the Labor Commissioner, Angela Bradstreet, along with the Deputy Chief and Chief Counsel of the Division of Labor Standards Enforcement (DLSE), issued a memo to all DLSE staff advising them of the Brinker ruling and directing them to apply the holdings in the Brinker decision to all meal and rest period cases brought before the DLSE.

Conclusion.

While the Brinker case and the Governor’s and Labor Commissioner’s reaction to the case are all good news for employers, a final word of caution is warranted. It is anticipated that the plaintiffs will petition the California Supreme Court for review of the decision. If the Supreme Court grants review, employers will have to wait and see how it rules. Nevertheless, the current state of affairs is that the rules outlined in the Brinker case will govern meal and rest period claims brought before the Labor Commissioner (DLSE) and most likely will be followed by other state courts.

For more information regarding the contents of this article or for assistance in complying with meal and rest period obligations, please feel free to contact any of the employment lawyers at Weintraub Genshlea Chediak: Lizbeth West, Charles Post, or Anthony Daye.

Download: Legal Alert – Updating Employment Policies (1025969).pdf

Updating Employment Policies

Below is a Notice from the U.S. Department of Labor regarding the new Military Family Leave entitlement added to the Family Medical Leave Act (FMLA). For those employers covered by the FMLA, this new entitlement will require that FMLA policies in employee handbooks and policy manuals be updated to appropriately reflect the new law.

However, this is not the only new law that recently went into effect which requires employers to review and update their employee handbooks and policy manuals. A number of other laws, such as California’s new Military Spouse Leave; changes in state minimum wage and minimum salary requirements for exempt employees; the upcoming restrictions on cell phone usage while driving; health insurance and mandatory sick leave requirements for employees in San Francisco; and compliance with certain statutory training requirements, also impact the employer’s policy and handbook language.

We recommend that employers have their employee handbooks or policy manuals audited for compliance with employment laws no less than every two years. If you have not updated your employee handbook or policy manual to reflect the recent changes and updates in federal and state law, now is the time to do so. We would be happy to assist you in this audit and update. Please feel free to contact us if you are interested in these services.

Upcoming Seminars:

We also want to let you know that the following seminars are on the horizon and separate invitations will be mailed out shortly.

May 15, 2008: “Untangling the Complex Web of Leaves and Absences: FMLA/CFRA, PDL, ADA/FEHA, and Workers’ Compensation.”

June 19, 2008: “Wage and Hour Laws: Understanding Some Important Intricacies Like: “Exempt” v. “Non-Exempt” Status; Proper Calculation of the “Regular Rate of Pay” and “Overtime Premiums;” and the True Meaning of “Hours Worked.”

We hope you can join us.

NOTICE

Military Family Leave

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181. Section 585(a) of the NDAA amended the FMLA to provide eligible employees working for covered employers two important new leave rights related to military service:

(1) New Qualifying Reason for Leave. Eligible employees are entitled to up to 12 weeks of leave because of “any qualifying exigency” arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation. By the terms of the statute, this provision requires the Secretary of Labor to issue regulations defining “any qualifying exigency.” In the interim, employers are encouraged to provide this type of leave to qualifying employees.

(2) New Leave Entitlement. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the servicemember. This provision became effective immediately upon enactment. This military caregiver leave is available during “a single 12-month period” during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave.

Additional information on the amendments and a version of Title I of the FMLA with the new statutory language incorporated are available on the FMLA amendments Web site at http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.