California is very picky about ensuring non-exempt (hourly) employees get their legally mandated rest and meal breaks. The question hasn’t been IF you should be enforcing the rest and meal break rules; the question has been what happens if you don’t. UPS has helped provide the answer.
In case you’ve forgotten, California law mandates at least a 10-minute rest break in the middle of each 4-hour work period for non-exempt (hourly) employees. That usually means a rest break mid-morning and again mid-afternoon. You can’t combine it with the lunch period. You can’t come in late or leave early as count it as a rest period.
The law also mandates at least a 30-minute meal period for non-exempt employees working more than 6 hours that day. If the employee will absolutely be off work within 6 hours, you can forego the meal period. But you better be sure they are gone by hour 6! If they are eligible for the meal period, it must begin within the first 5 hours of their workday.
The tricky part is making sure the employee takes the minimum time mandated for each break. No picking up the phone, no other employee asking them a work question, NO work can be conducted during that rest or meal break or you start the clock all over again until they get their 10 or 30 minute uninterrupted break.
And if they don’t get both 10-minute rest breaks and 30-minute meal break? You owe them one hour of ”penalty pay” for each missed or interrupted break, up to two hours of penalty pay per day. Plus, the missed or interrupted meal period could also make the employee eligible for overtime because you now have to count that as worked time.
Employer attorneys have been saying you were only required to pay one hour of penalty pay each day, regardless of the number of missed breaks. However, again thanks to UPS, a court case has resulted in a decision that the maximum is two hours each day if two or more breaks are missed.
We’re still waiting for the CA Supreme Court to let us know if we have to “enforce” the breaks or merely “inform” employees that breaks are available. The decision is expected (finally) in April so we’ll cross our fingers until then.
Guest Blogger Kit Goldman is a nationally acclaimed trainer and workplace expert. She has helped clients ranging from “Mom and Pop” businesses to industry giants like State Farm, Johnson & Johnson, Turner Broadcast and MGM, to prevent costly lawsuits through powerful, “edutainment”-style training.
Here are the top 5 reasons we’ve heard from small business owners who initially resist Harassment Prevention training for their employees:
Training just stirs things up
It’s a can of worms
Why open Pandora’s Box?
It’s not in my budget
Let sleeping dogs lie
To which we point out that every employer has a mandatory, no exceptions legal duty to protect employees from unlawful harassment! Educated employees know what the boundaries are and can avoid and prevent harassment.
Supervisors and managers have a mandatory, no exceptions legal duty to take immediate and appropriate action if they knew or should have known harassment may be occurring! Educated supervisors and managers know what to look for and what to do if it happens and showing you took steps to prevent harassment can greatly reduce legal exposure should it occur.
With that in mind, let’s peek in on Roger, a supervisor at a fictional company:
He’s a likable, respected old school guy with a sense of humor. He’s meeting with Margo, an employee, about a promotion. When she arrives, he’s on the phone joking about a gay employee who came in on casual Friday looking like “I Dream of Jeannie.” Margo’s embarrassed by the conversation — and the picture on Roger’s desk of his wife at the beach. She’s easily offended which is a concern Roger has regarding the promotion. He tells Margo she’s qualified, but she’s uptight and makes people paranoid. She needs to loosen up, be part of the team. He teases her about her “Catholic School upbringing” in his warm, good natured, style. He doesn’t mean anything by it. It’s just how he is. Margo tries to tolerate it.
Think Roger’s behavior is over the top? Think people don’t act that way anymore in our “PC” workplaces? Please! Hand over the rose colored glasses and get me a latte with an extra shot! These high-risk scenarios occur. It’s often unintentional, unrecognized, and unreported — until a lawyer or the EEOC comes calling.
Here are three key legal concepts in that scene which your supervisors and managers need to understand:
Harassment is Unwelcome Conduct: But welcome to whom? Roger was in a private conversation when Margo walked in. It was welcome to the people having it, but we also must be concerned with what’s welcome to others in the work environment
Intent vs. Impact: Harassment is about impact not intent. It’s defined 100% by the impact on the other person. Roger may be good hearted and doesn’t mean anything by it, but unless he’s enlightened, he’s a runaway train rumbling toward a cliff with the company’s good name and resources aboard.
Consenting vs. Welcome: If someone consents to something, it’s probably welcome, right? Say you’re in the parking lot, someone puts a gun to your head and demands your wallet. Will you consent and give it up? Yes. Did you welcome being robbed? No. The law recognizes that in the workplace people consent to things they don’t welcome for a variety of reasons. Consent does not necessarily equal welcomeness.
Oh… and speaking of your wallet, when compared with the costs of investigations, lawsuits, settlements and audits, Harassment Prevention Training is incredibly cost effective! When it comes to protecting your business, the old saying “an ounce of prevention is worth a pound of cure” couldn’t be more true.
Most companies find the holidays difficult to navigate simply because of the religious diversity among us. In the workplace, Christmas day has long been a holiday that has come to be more a representative day for holiday observance than its religious meaning. While some companies with founders that have strong religious beliefs may close and observe other religious holidays, it is a legal minefield.
Now we have a school district in Fort Worth TX that appears to be attempting to teach religious political correctness (PC) to students. In their effort to separate church and school, they are prohibiting the exchange of religion-based cards and greetings and monitoring decorations to ensure there are no religious overtones. However, the students may exchange gifts and religion-based cards during lunch periods and before/after school. Sound like your office environment?
Needless to say, parents are rolling their eyes and complaining. However, do they really have anything to complain about? In case you haven’t noticed, this is the type of environment many companies are striving to achieve to prevent lawsuits regarding religious freedom.
While a company is free to declare which, if any, days it plans to close operations within the year, you need to be prepared to respond to employees who don’t observe Christmas and would like to trade it for the religious holiday of their choice. As you might have guessed, it’s not an even swap because you can’t have, or don’t want, them working when your business is closed. The uneven swap is because the most you can usually offer is an unpaid day off. If you offer them a different paid day off, are you discriminating against those that didn’t ask by allowing an additional paid day?
I’m curious to hear from you… is this an issue in your company? If so, how are you handling it?
Even if your Employee Handbook states which holidays you normally observe and close on, you should send out a memo each year at this time stating specifically which days and dates for the following year.
As we know, holidays that fall on the weekend are typically observed on Friday (for Saturday holidays) or Monday (for Sunday holidays). If you’re one of the many companies that tries to give employees a specific number of holidays each year, it’s even more important for you to publish the upcoming year’s list so your employees can plan accordingly.
There’s really nothing worse than people being told too late about a long weekend. They have no time to plan and, therefore, your great benefit falls flat.
I’ve listed below the dates the more popular holidays will fall on for 2012. Use this moment to create your holiday memo for employees!
News Year’s Day (Jan 1, a Sunday that may or may not be observed on Monday)
Martin Luther King, Jr. Day (Jan 16, a Monday that is typically observed on that day, if at all)
Presidents’ Day (Feb 20, a Monday that is observed on that day and is popular simply because it breaks up the first half of the year)
Memorial Day (May 28, a Monday when most businesses will close)
Independence Day (July 4, a Wednesday that will make it hard to turn this into a long weekend)
Labor Day (Sep 3, a Monday when most businesses will close)
Thanksgiving Day (Nov 22, a Thursday when most busineses will close)
Thanksgiving Day After (Nov 23, a Friday when a lot of business close to make it a highly appreciated long weekend)
Christmas Day (Dec 25, a Tuesday when most business will close)
New Year’s Eve (Dec 31, a Monday when a few businesses allow employees to leave early without it counting as time off)
As a rule, the priority of holidays given go in this order: the top 5 (Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day), then Thanksgiving Day After (if your business can handle it), and Presidents’ Day. Additional holidays or days around holidays are added at this point based on the business itself.
Not that it’s an observed holiday but keep in mind that next year is a Leap Year and Feb 29th falls on a Wednesday.
Yes, it’s that time again! January is fast approaching and your company probably needs new employment law posters for the wall this year. Since there is a new addition to the 2012 posters and a few minor updates, you can’t easily get by with last year’s model. The link below will send you to a website that has posters for California but you can easily access the other states on this website, too. You do need posters for any other states where you have employees… and, yes, you need one for every state where you have ANY employees.
As a side note, this site has the state and federal posters as separate posters and sells the set for $39.99. The information that continues to be added to each of these is making it harder to get everything on one gigantic poster.
Don’t forget that you should also have your IWC Order posted next to your employment law poster. If you don’t know what I’m talking about, contact me! There are 17 to choose from and you use the one that best fits your industry.
On 9/19/2011, Secretary of Labor Hilda L. Solis hosted a ceremony at U.S. Department of Labor headquarters in Washington to sign a memorandum of understanding with the Internal Revenue Service that will improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders representing seven states signed memorandums of understanding with the department’s Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Secretary Solis also announced agreements for the Wage and Hour Division to enter into memorandums of understanding with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York’s attorney general.
The memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.
What Should You Do?
Audit your employee and independent classifications to determine any misclassifications. Once you know what needs to be changed, you need to make those changes. It will come at a cost, so be prepared. Misclassifying can’t be fixed for free by the very nature of the misclassifications. Get professional advice on how to clean this up to avoid it coming back as an issue at some point.
I’ll admit I’m a couple of weeks late getting this to you. I’ve been transitioning some computer stuff and it took me a while to get back online. However, you can nowdownload the new 2011 W-4 form.
Keep in mind that you don’t need employees to fill it out again if they aren’t making changes but you should use the 2011 version for new hires.
I just wanted to let you know that, in California, the Workers’ Compensation poster information has been revised with wide-ranging changes due to the recently amended Medical Provider Network (MPN) and employee information regulations. Employers are required to post the “Notice to Employees” update by October 8th, 2010, to comply with the amended regulations. Failure to post the notice by the October deadline can result in fines up to $7,000 in civil penalties.
California has been reaping the financial benefits of your timekeeping efforts. Over the past couple of years, more and more companies are getting caught by insufficient proof that they’ve properly tracked (and paid for) employees’ time.
A proper time card shows:
exactly what time your employee started work,
exactly what time your employee left for a meal break,
exactly what time your employee returned to work, and
exactly what time your employee quit working for the day.
Sounds easy, doesn’t it? Then why are so many companies paying huge fines and penalties? Because they aren’t doing it correctly.
I recently viewed a company’s time cards for all of 2009. Every time card for every employee said exactly the same thing: in at 8:00a, out at 5:00p, one hour lunch. Let’s face it, there is no way even one employee clocked in and out at exactly the same time every day for a year. Don’t even get me started on the impossibility of taking exactly one hour for lunch every day.
Those time cards do not protect that company from claims because they aren’t truthful. It doesn’t matter that the employees filled them out… they aren’t believable and certainly not honest.
You can’t afford to let your employees get away with “easy” time cards. You need a time card that will back up your own claims that you have paid employees for any overtime worked, that they took at least 30 minutes for a meal break every day, and that the meal period began within the first five hours the employee worked.
If this sounds like too much work for you, do the math. Every day that a non-exempt employee misses at least one rest break or takes less than the 30 minute meal break required, you have to pay that employee one hour of penalty pay… plus a half hour of overtime if the missed meal break caused them to work more than 8 hours.
Let’s go over those rules again. Non-exempt employees must take a 10-minute rest break (not 8-minutes and not two 5-minute breaks) for every 4 hours worked. In addition, if they are working more than 6 hours that day, they must take at least a 30-minute meal break that starts within the first 5 hours of work. One skipped rest break or a meal break that is interrupted by work results in the need to pay one hour of penalty pay for that day.
So, let’s go through that math again with the lowest denominator. If one minimum-paid employee misses one rest break one day each week, you have to pay the employee:
$8 (one hour) penalty pay for the rest break that was missed that week
Multiplied by 52 weeks in a year
Equals $416.00 just in penalty pay for the year.
Give some thought as to what poor timekeeping records could cost you in a year, then ask yourself if it’s worth throwing away that much money just to make it easier for your employees.
