Work Time Series

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By Colleen M. Regan

Over the past decade, plaintiffs have filed hundreds of class actions alleging that California employers have failed to “provide” meal breaks.  The California Supreme court finally handed down some rules in 2012, in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004: 

  • An employer may not employ a person for more than 5 hours in a day without providing a meal break of at least 30 minutes, or more than 10 hours without providing a second 30 minute meal break. 
  • An employer must relieve the employee of all duty for a required meal break, but the employer need not ensure that the employee does no work:  “The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and does not impede or discourage them from doing so.”  Brinker, 53 Cal. 4th at 1040. 
  • Absent a waiver by the employee, a first meal break must begin no later than the start of an employee’s sixth hour of work.
  • Absent a waiver by the employee, a second meal break must begin no later than the start of the 11th hour of work, but the second meal break may begin later than 5 hours after the end of the first meal period.

But, you may ask, does the government mandate over employee eating schedules know no bounds?  Are there no exceptions?
Continue Reading When Do Employers Get a Break From Meal Period Rules?

By Nicholas Clements and Kerry Friedrichs

Well-intended employers often lament the various gotchas that await them down the dark and winding road that is the California Labor Code. Perhaps no turn in the road is more treacherous than the one at Wage Statement Junction. Here one crosses at extreme peril, for the California Legislature, in Labor Code section 226, has planted legal land mines that can blow up at the slightest provocation.

A Common Sense Question With a Less-Than-Intuitive Answer:  “Can’t I avoid hazards if I just pay them the right amounts and on time?” Sadly, no, there’s much more to it. Labor Code section 226(a) lays out a long list of other requirements, some more sensible than others.

Not so Simple. Timely paychecks must be accompanied by a “simple” wage statement at least semi-monthly, and the wage statement must include nine distinct pieces of information for each employee:
Continue Reading Time to Revisit Your Pay Stubs?

By Geoffrey C. Westbrook and Joshua M. Henderson

Just when one might have thought California employment law couldn’t get any stickier for employers, in January 2014 the California Legislature turned up the heat by expanding meal and rest break penalty provisions. Now there’s a new penalty for failure to provide “cool-down,” or recovery, periods to prevent heat illness.

Before, heat illness prevention laws were enforced only by the limited resources of Cal-OSHA. Now, newly amended Labor Code Section 226.7 authorizes private enforcement through class, individual, and multi-plaintiff actions, as well as by the DLSE. Monetary incentives, in addition to ambiguities on many aspects of the law, will likely trigger increased Cal-OSHA enforcement and new litigation, just as the remedies for meal and rest break violations have produced a heat wave of class action litigation. Talk about a scorcher!

But What is a “Cool-down” Period? California employers with “outdoor places of employment” must implement a heat illness prevention program, including allowing and encouraging employees to take a “cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating.” During these periods, employees must get continuous access to shade and drinking water.

While these obligations existed for almost a decade under Cal-OSHA’s oversight, private enforcement officially began January 1, 2014 with the amendment to Labor Code Section 226.7. Now, “an employer shall not require an employee to work during a meal or rest or recovery period” required by law. As a penalty, employers must pay non-exempt employees one additional hour of pay for each workday in which a meal or rest or recovery period is not provided. Penalties are cumulative, meaning it is now theoretically possible under Section 226.7 for an employer to incur three penalties in a given workday for each affected employee.

So, What are “Outdoor Places of Employment?” This term, not defined in the regulations, may seem self-evident. “Outdoor” really means “out of doors” in an open air environment. But how much time must one spend out of doors to make it a “place” of employment? Reasonable minds could differ here: is 50% of a workday spent outdoors sufficient to trigger the law, or will a mere 25% suffice?

Recovery Periods: A “Hotbed” for Litigation? There are no published decisions yet on cool-down periods, and the law is rife with ambiguities that only litigation will resolve. These uncertainties, and the prospect of penalties that will be very large when considered on a cumulative basis, may prompt private litigants to initiate civil actions against unsuspecting employers in industries with some outdoor work that haven’t traditionally been the focus of enforcement initiatives. These industries may include engineering, warehousing, carwash, outdoor recreation, automotive sales, security, country clubs, valets, summer camps, and janitorial businesses.

The following are areas where employers may face “cooling down” challenges:
Continue Reading Avoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation

By Dana Peterson and David Rosenberg

In today’s increasingly mobile workplace, employers often require their non-exempt employees to head out of the office for such things as client meetings, off-site events and training.  Understanding when you must pay employees when they’re on the move might help you avoid a train wreck down the road (pun intended.)

The basics.  If you’ve been following our blog with any regularity, the following should come as no surprise: when determining whether travel time is compensable, the applicable California and federal standards differ quite a bit.   For instance, federal law defines “hours worked” as: (a) all time during which an employee is required to be on duty or be on the premises or workplace of the employer, and (b) all time during which an employee is “suffered or permitted to work,” whether or not the employee is required to do so.

By contrast, California defines the term “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all time the employee is suffered or permitted to work, whether or not required to do so.”  I.W.C. Wage Orders, Section 2 (emphasis added).  Therefore, employees must be compensated for time that they are “subject to the control” of the employer, even if they are not “suffered or permitted to work” during that time. 

Enough with the legal jargon, when do I need to pay for travel time?
Continue Reading When Hitting the Road is Hitting your Pocketbook: Travel Time Rules in California

By Brian P. Long

It is a fairly common practice for companies to have non-exempt employees available by phone at the drop of a hat to respond to emergencies and other unexpected business needs.  Yet, if the employee doesn’t actually respond to any phone calls or do anything during that time period, is the company still required to pay them for the mere possibility that their services may at some point be needed?

Any time during which employees are subject to control by the company may be “hours worked,” even though the employees don’t actually perform any work and possibly even if they are able to spend the time doing whatever they choose.

So how do companies know if the employee is under their “control” during on-call/standby time?  Like many other areas of California employment law, whether the answer to this question is yes or no turns on the employee’s specific situation.

There have to be some general rules, right?  Non-exempt employees may be on-call during unscheduled work hours to respond to calls for help from work.  On-call time can be either controlled or uncontrolled, depending on how restricted the employee is in being able to utilize the time for personal pursuits.

To be controlled or uncontrolled: That is the question.  Of course, because this is California, there is no hard and fast rule about how many times an employee’s day or evening must be interrupted or for how long that interruption can last before all of the on-call time (not just the time the employee spent dealing with the interruption) rolls into the controlled category as opposed to uncontrolled.  Factors that are considered include:
Continue Reading On Call vs. On Duty: I’m About to Lose Control and I Think I Like It!

By Chris Crosman

Reporting time pay is one of the provisions of California wage and hour law that is often overlooked by employers.  The requirement to pay reporting time is set forth in Section 5 of all but one of the 17 Wage Orders, and it guarantees workers that they will be paid for at least half of their scheduled …
Continue Reading Time is Money: Reporting Time Rules in California

While most employers now use computerized timekeeping and payroll systems, many “round” employees’ time, a practice originating in olden days when time and pay calculations were done by hand.  But is this practice legal?  According to a recent California Court of Appeal decision, See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), the answer is …
Continue Reading A Sweet Decision: See’s Candy Clarifies Time Rounding Rules

From the day we join the workforce, we are trained to think work means 8 hours a day, 5 days a week. This is especially true in California, which swoops in to reward employees with overtime pay when they work over 8 hours a day.  You might be surprised, however, to learn that California allows for some flexibility. Instead of the normal 8 hour day, employers and their workers have the ability to implement an “Alternative Workweek Schedule,” which, if done right, lets employees work more than 8 hours per day, without daily overtime, while putting in fewer days of work per week. 

Q: What is an Alternative Workweek Schedule?

A: An Alternative Workweek Schedule (or “AWS” in hip lawyer lingo) is a fancy term for a process allowing employers, with their employees’ permissions, to set work schedules that vary from the usual 8 hours per day, 5 days a week, without paying daily overtime. California Labor Code section 511 governs the requirements for implementing an AWS. 

Q: Why would I want to do this?

A: Short answer?  Happier employees. Employees like an AWS because it allows greater flexibility in their personal lives.  Many employees who are told they can finish their work week in four days by working two extra hours a day will pounce on the idea with unbridled enthusiasm. 

The other answer? A well-designed AWS can essentially eliminate the payment of overtime for those using it. Your finance guys will thank you.

Q: What are the possible work schedules?

A: Employers have many options to choose from. The most common are:  four days of work per week, for ten hours a day (aka a “4/10 ”); and what’s referred to as a  “9/80.” A 9/80 allows for nine days worked in a fourteen day calendar period, totaling eighty hours of work.
Continue Reading Tired of the 9-5 Grind? Consider an Alternative Workweek Schedule!

Our guest author, Lisa Hart, is a highly-trained double certified coach and member of the International Coach Federation who enjoyed a successful legal career on Wall Street as a litigator for 20+ years. Lisa excels at helping attorneys and other high performers find greater success and satisfaction, personally and professionally.  She can be reached through her website for a complimentary sample session. While her views do not necessarily reflect those of the authors or Seyfarth Shaw LLP, Ms. Hart offers a thoughtful perspective worthy of careful consideration.

Yahoo!’s recent decision to ban its work-at-home program raised concern for some about the future of telecommuting.  The good news is that most companies offer some sort of work-at-home arrangement because doing so is positively correlated with higher retention rates, lower absenteeism, and greater productivity and employee satisfaction.  Still, working at home can be challenging for both employer and employee.  The following guidelines will help both sides design telecommuting arrangements that are effective, productive and mutually satisfying.

1.    Design a Workable Plan.

Employees: You need to meet professional responsibilities and goals.  Consider what support elements you need in place in order to do that.  What are your employer’s expectations and needs?  Are there weekly meetings that you’ll need to attend in person?  Don’t commit to an arrangement that you know you’ll have difficulty sustaining. 
Employers:  Depending on your company’s size, consider telecommuting guidelines and/or policies for the sake of ease, managing  expectations and ensuring consistency in approach.


Continue Reading Making Working from Home “Workable”

What’s the latest in telecommuting?  If you have many employees who rely on their ability to work from home, you probably were interested to hear of a change in trend in telecommuting.  Yahoo! CEO Marissa Mayer caused an uproar when it was leaked to the public that the company’s “work-from-home” policy was being revoked.  People seemed shocked that such a …

Continue Reading So I Have to Get Dressed and Come to Work? The “Work-at-Home” Debate Continues, but What About “Reasonable Accommodation” Obligations?