Wage & Hour Update-Rest Period Case Favorable to Employers!

July 29, 2008

The following case summary was taken from the Daily Briefs that I receive. This is ONE source that I keep up with to keep on top of current cases changes and changes in the law. I wanted you to get the whole picture. This case is favorable to employers regarding rest breaks.

Labor and Employment Law section:

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. Requirement that all persons working more than five hours in a day be given a meal period does not obligate employer to grant a meal period for every five consecutive hours worked. While 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. Certification of employee class was error with respect to subclasses claiming denial of rest periods or meal periods, or overtime compensation for work off the clock; since each employee would have to show that denial of rest or meal period was result of unlawful action of employer and not employee choice, and each employee claiming to have worked off the clock would have to show that employer knew or should have known of the off-the-clock work, individual issues necessarily predominated over classwide ones with respect to those subclasses.
     Brinker Restaurant Corporation v. Superior Court (Hohnbaum) – filed July 22, 2008, Fourth District, Div. One   Cite as 2008 SOS 4356

In closing, I want to add that we need to stay proactive with these break issues. Make sure that your employees know that they are permitted to take their proper breaks and lunch period. This was a good decision so let’s make sure we, as employers. don’t give the courts any second thoughts.

Non-Fraternization Policies. Are They A Waste Of Time?

July 21, 2008

We are constantly receiving calls regarding the validity of non-fraternization policies. Let me begin by saying that such policies are valid but have to be carefully written. There was a recent case where the high court determined that the defendant employer restricted the interaction of staff so closely that the policy impacted the rights of the employees to discuss protected workplace rights (such as being able to discuss salaries).

Another common issue that gets challenged is whether or not an employer can restrict the off duty conduct of employees. Managers and supervisors have to be careful because of the potential liability for sexual harassment claims. But what about employees? Privacy issues have surfaced but, an employer can have a policy about off duty conduct that potentially can impact the employer.

It is my personal belief that non-fraternization policies are a waste of time. If two employees want to get together they are going to sneak and “get the deed done” no matter what policies are in place. The work environment is already filled with gossip and rumors. Why add fuel to the fire and, usually, everyone but the boss knows anyway. If the relationship begins to impact the business the employer has a right to take action.

Have any of you found such policies to have value? Let’s hear from you!

Three Key Reasons Why Former Employees Sue!

July 14, 2008

Over my twenty-eight years in this business I have seen employees sue for every reason that you can imagine. Throughout that time frame, several key areas have emerged as the most consistent. I have specifically omitted claims of discrimination because those are too easy and include too many frivolous allegations therefore I focused my attention on wrongful termination issues.

The number three reason, in my humble opinion, is not giving a reason for the termination. When you fail to do so, the former employee begins to imagine all sorts of things and never imagining, even for a moment, that they had done anything wrong! The person conducting the termination may have wanted to avoid an uncomfortable encounter and becomes vague as to the reasons for the discharge (or calls it a layoff because it is easier). You have to “ante up” and get into the game. Employees deserve to know the reason why they are out of a job and, in fact, some states require that the reason for the termination be in writing.

The second most common reason is when a manager terminates for bad performance and there are excellent performance reviews on file. How inconsistent is that!! Don’t be lazy, conduct the performance reviews in a manner consistent with the performance of the individual. Again, there are times when a manager takes a less confrontational route. Ante up people and let’s do what has to be done! If you need some education on “Conducting Effective Performance Evaluations” let us know. We offer that training.

The number one reason (drum roll please) is when the manager fails to follow established company policies, practices and procedures! The attorneys will tear a manager apart if they failed to follow their own rules. Employers in general need to have an employee handbook that is up to date and distributed (and signed for) to every employee and new hire. An annual review needs to be conducted to ensure that there weren’t any recent legislative or internal policy changes. The sad part is the termination, on its face may, have been proper. You simply cannot prove it, or, the cost of litigation (now that the door had been open to doubt) is more costly than a nuisance value settlement. Know and follow your own policies and when in doubt call us!

Well, there they are. Let’s avoid the minefield of litigation with at least avoiding the three key areas mentioned above.

It’s Hot And The Clothes Are Coming Off!!

July 7, 2008

Don’t get excited!! I’m not talking about me! With the current heat wave employees are dressing with lighter clothing and in some cases, less clothing. During the summer, there is generally an increase in sexual harassment allegations (DUH!!). Employers must not get distracted with the weather and let their guard down regarding the dress code policy. Yes, short sleeves, as opposed to long sleeves, is ok. But shorter dresses, revealing midriffs, and low cut blouses (sorry guys), is not. Turn up the air, put on the fans, or do whatever you have to but “Let’s keep the clothes on.”

At-Will does mean “At-Will” but…

July 7, 2008

The reality is, employers need to understand that the “At-Will” provision will not protect them for violations of employee rights. Obviously terminating an employee for discriminatory or retaliatory reasons will not protect you from a wrongful termination lawsuit. We are constantly trying to get managers to understand that it is still important, in every scenario, to document poor performance or violations of company policy and if you do that, you really do not have to worry about the “At-Will” provision. Too many employers look at it as a safety net. Forget it and simply do your documentation and you will be covered. Let the “Legal Beagles” argue the “At-Will” provision if the need arises.