HR Watchdog

DLSE on Meal and Rest

In response to the California Supreme Court's decision to hear the Brinker case (see blog from October 22, 2008), the DLSE issued a new memorandum outlining its current position on the meal and rest break issue. CalChamber still recommends you make sure employees get all required breaks and pay employees if, in particular, a meal break is missed, immediately for additional wage. Be sure to consult with legal counsel if you are unclear on the current legal requirements on this issue.

SF Commuter Benefits UPDATE

As previously posted, San Francisco employers with 20 or more employees, beginning January 19, 2009, are required to provide employees who work at least 10 hours of work per workweek within the geographic boundaries of San Francisco with commuter benefits. This includes offering employees at least one of the following transportation benefits:

1. A pre-tax election of a maximum of $115 per month, consistent with current federal law. This dollar amount was recently changed and the ordinance is in the process of being amended to reflect this change. We were also advised today that the amount will rise to $120 per month on January 1, 2009.
2. An employer-provided transportation pass (or provide reimbursement for) equal in value of $45 (or more) per month.
3. Employer provided transportation at no cost to employees.

The SF Department of the Environment is also hosting free workshops at City Hall to answer questions about setting up a Commuter Benefit program, the ordinance, and IRS code 132(f). The dates of the workshops are Thursday, October 30 at 9am and Tuesday, November 18 at 1pm. Contact them directly if you would like to attend: hotline: 415-355-3705; email: commuterbenefits@sfgov.org.

Daylight Saving Time

Hopefully your office does not have clocks or a phone system that automatically updates the time for Daylight Saving Time (DST) because if you do, the time may be an hour early. DST is not until Sunday, November 2, 2008 at 2:00 a.m. - this is when our clocks must "fall back" one hour. DST was extended in 2007.

When DST was enacted in the early 20th Century, 2:00 a.m. was chosen because the change at that time would cause minimal disruption. However, in the era of computers and global communication, businesses can experience practical issues when the clocks change over. But, DST can also be a good time for you to review safety and other protocol. In your home you may change the batteries in your smoke detectors, but at work you should take the opportunity to provide training updates to all employees. For example, the holiday season is a good time to remind employees of your dress code and harassment policies.

Be sure your payroll department is prepared for the time change as well, particularly if you have nonexempt employees working Saturday night through Sunday morning.

Supreme Court Agrees to Hear Brinker!

Provide or Ensure Meal and Rest?

Compliance with California’s meal and rest period requirements - and whether employers must ensure they are taken or simply provide them - has been a source of significant litigation in both federal and California courts. In early 2008, class certification for a meal and rest period lawsuit was denied by a federal District Court finding that nothing in California law required the employer to ensure employees took their meal breaks - employers must only supply or make such time available to employees. (Brown v. Federal Express Corporation 249 F.R.D. 580 (2008).) However, because this is a federal court ruling, it did not change the law in California that employers must ensure employees stop working during their meal breaks. As such, merely providing meal breaks to nonexempt employees is insufficient.

Then, in July 2008, a California court of appeal denied class certification for almost 60,000 restaurant employees because the lower court did not properly consider the elements of the employees’ claims in determining if they were susceptible to class treatment. Specifically, the court found that:

• While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken.
• Employers need only authorize and permit rest periods every four hours or major fraction thereof, and they need not - where impracticable - be in the middle of each work period.
• Employers are not required to provide a meal period for every five consecutive hours worked.
• Employers cannot impede, discourage or dissuade employees from taking meal periods. They need only provide them and not ensure they are taken.
• 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.

Because rest and meal breaks need only be "made available" and not "ensured," the court also found that individual issues predominate, and - based upon the evidence presented to the trial court - they are not amenable to class treatment. Further, the off-the-clock claims are also not amenable to class treatment, as individual issues predominate on the issues of whether employees were forced to work off the clock, whether the employer changed time records, and whether the employer knew or should have known employees were working off the clock.  (Brinker v. Superior Court 165 Cal. App. 4th 25 (2008).)

! This case was appealed to the California Supreme Court, which agreed - on October 22, 2008 - to hear the case.. Until the California Supreme Court issues its ruling, this case cannot currently be relied upon and should not be followed. Contact legal counsel to ensure that your policies reflect the most prudent practices relating to meal and rest breaks and tracking of employee time; always track all hours worked and not worked of all your nonexempt employees; and make sure supervisors and managers consistently enforce your policies and procedures, in particular, as they relate to meal and rest breaks for nonexempt employees.

New Computer Prof and Physician Rates for 2009

The Department of Labor Statistics and Research has released the minimum wages for exempt computer professionals and exempt physicians. Effective Jan. 1, 2009, the minimum hourly wage is raised from $36.00 to $37.94; the minimum monthly salary exemption = $6,587.50; and the minimum annual salary exemption = $79,050.00.

The licensed physicians and surgeons employee's minimum hourly rate of pay exemption is raised from $65.59 to $69.13, effective Jan. 1,2009.

EEOC Required Posting Change

The EEO poster was changed in August and the OFCCP has just informed us that the August 2008 poster contains required changes. So, if you haven't ordered your 2009 Employment Notices Poster or gotten on our standing order list, now would be the time!

19 Days to the Election - Are you ready?

It is officially voting season, not only have absentee ballots been sent out already, but employees are preparing for election day in the booths. As the employer, you have a responsibility to ensure voters rights are protected.

Have you posted the required posting? California Elections Code section 14001 requires employers to post the Time Off To Vote poster, available in English and Spanish, at least ten days before a statewide election - the next election is on Tuesday, November 4, 2009. According to the California Secretary of State:

• The employee notice must be posted either in the workplace or where it can be seen by employees as they enter or exit their place of work.

• Employees are eligible for paid time off for the purpose of voting only if they do not have sufficient time outside of working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs.Voting hours are from 7am to 8pm.

• Employees can be given as much time as they need in order to vote, but only a maximum of two hours is paid.

• Employers may require employees to give advance notice that they will need additional time off for voting.

• Employers may require time off to be taken only at the beginning or end of the employee's shift.

If you have the CalChamber Employer Notices Poster for 2008, you are already in compliance. If you don't, get the poster, part of the required notices kit - you can order now for 2009.

Plus, take this opportunity to remind your supervisors and managers of these requirements to ensure employee rights are consistently enforced.

New SF Minimum Wage for 2009

The San Francisco Office of Labor Standards Enforcement has released the minimum wage for 2009. It will be $9.79 per hour effective January 1, 2009. Stay tuned for release of the required poster.

ADA Amendments - California Employers Need Not Worry

The federal Americans with Disabilities Act (ADA) was recently amended for the following reasons - these changes are effective January 1, 2009.

(1) to carry out the ADA’s objectives of providing ‘‘a clear and comprehensive national mandate for the elimination of discrimination’’ and ‘‘clear, strong, consistent, enforceable standards addressing discrimination’’ by reinstating a broad scope of protection to be available under the ADA;

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

(3) to reject the Supreme Court’s reasoning in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms ‘‘substantially’’ and ‘‘major’’ in the definition of disability under the ADA ‘‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’’ and that to be substantially limited in performing a major life activity under the ADA ‘‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives’’; and

(5) to provide a new definition of ‘‘substantially limits’’ to indicate that Congress intends to depart from the strict and demanding standard applied by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and by numerous lower courts.

However, California's Fair Employment and Housing Act (FEHA) defines disability has something that limits (NOT substantially) employees' ability to perform the essential functions of their job without looking at the ameliorative effects of mitigating factors. So, these changes, while significant on a federal level, do not change compliance for California companies because FEHA's requirements are already and remain more stringent that those in the ADA, as amended. If you want detailed information on the differences between FEHA and the ADA, CalChamber members can access the FEHA- ADA comparison chart under "Forms and Checklists" on HRCalifornia.com.