Employee Rights 101-- Meal and Rest Breaks

Meals and Rest Breaks

Welcome back to our 101 series! Previous editions have focused on overtime laws and wrongful termination, so hit the links if you'd like to catch up. Today we're talking about employee entitlements in the state of California, like meal breaks and rest periods. 

Since the laws differ from state to state most employees, and a good chunk of employers as well, are unaware of the breaks to which employees are entitled. So let's dive right in: how many breaks you get and how long they are depends largely on the length of the workday.

—Employees are entitled to one 10-minute paid rest for every 4 hours that they work.

—Any employee working 5 hrs. per day or more is entitled to one unpaid meal break of no less than 30 mins. 

—If, however, the workday is no longer than 6 hours, then the meal break can be waived by mutual consent of the employer and employee.

—When a shift reaches ten hours or more, employees are entitled to an additional unpaid meal period of no less than 30 mins. 

   

California law stipulates not just the duration and frequency of rest periods, but also takes step to ensure that rest periods are a genuine break from work. An important fact to remember is that meal breaks are a minimum of 30 mins. uninterrupted rest. If employees aren't totally relieved of their duties during a meal break then it is considered an "on-duty" meal period that counts toward weekly hours worked.

Employers have the responsibility to ensure that their employees are relieved of their work duties before the meal period begins and that the meal period remains uninterrupted. In most cases, employees must also be able to come an go as they please during their break.

The law does accommodate, though, professions and situations that require an employee to work through meal breaks, like a security guard working alone or healthcare employees who may be called on in emergencies. These "on duty" meal breaks must be paid and are counted towards hours worked. Furthermore, if an employer requires employees to remain onsite during meals, then they must be paid even if employees are fully relieved of duties. 

In all workplaces where employees are required to take meal breaks on premises, the employer is responsible for designating an appropriate place to prepare and take meals. A notable exception to this rule is IWC order 16-2001 which concerns outdoor occupations like construction, logging, and drilling, but the order still stipulates that potable water, soap, and paper towels be provided for employees.

Fun fact: you are required to take your meal break. "Working through lunch," does not, despite popular belief, entitle one to leave work any earlier. Unless specifically mentioned in an applicable wage order, employees must take their meal breaks according to the time schedule outlined at the top of this page. The only way that employees are allowed to work through lunch is if the nature of the work prevents them from taking an uninterrupted break. 

We hope that this series will continue to be helpful and entertaining. For more information we encourage you to read this FAQ put together by the Department of Labor Standards and Enforcement or consult this online pamphlet from theCalifornia State Bar. If you have a serious legal concern, however, please feel free to send us a message at any time or call us during regular business hours at 562-354-2980.  

originally published May 16, 2016 at felahylaw.com

Huge Change to Overtime Rules is on the Way

img credit ABC News

On May 17, 2016 whitehouse.gov announced sweeping changes to Department of Labor policy when it comes to worker eligibility for overtime pay, or rather, one major change is being made that will have a sweeping effect across the country for the coming decade.

According to Scott Horsley of NPR News as recently as 1970, over 60% of salaried (you read that correctly: salaried) employees qualified for overtime rates when made to work more than 40 hours in a week. As of today, that number is estimated to be less than 7%.

Why such a big drop? Over the years, employers have made a habit of misclassifying employees in order to avoid paying overtime premiums. Famous examples include fast food "supervisors" whose wages and duties are nearly identical to the hourly employees they supervise. The only difference being that the supervisors have to work 50–60 hour workweeks at a fixed rate. 

The proposed rule will effectively double the minimum income threshold to qualify for overtime pay, raising it from $23,660 to $47,476. With median annual income in the US hovering around $50,000 this new rule will be a huge boon to struggling working and middle class employees— giving employees a little breathing room, and a little leverage, in these dicey economic times.  

In a personal message posted to the whitehouse blog (linked at top), POTUS stated:

"Tomorrow, we're strengthening our overtime pay rules to make sure millions of Americans' hard work is rewarded. If you work more than 40 hours a week, you should get paid for it or get extra time off to spend with your family and loved ones. It's one of most important steps we're taking to help grow middle-class wages and put $12 billion more dollars in the pockets of hardworking Americans over the next 10 years."

President Obama, who has remained fairly quiet during this year's primary election hubbub, has been taking steps to cement his legacy as an advocate of the middle and working classes with executive orders and top-down changes to federal policy.

Stymied by a congress too much enamored with the neo-conservative economics of the 80's and 90's, POTUS has made use of his executive authority to strengthen protections for working people, including raising wages for federal employees.    

The new rule will take effect on Dec. 1 2016, after nearly two years of study and review. The new rule will change how we interpret and enforce the depression-era Fair Labor Standards Act. 

In his message, the President referred to raising Americans' wages as a "critical issue" and that this new rule would be a huge step in resolving that issue. Saying "Americans have spent too long working long hours and getting less in return," POTUS defends his choice economically by reasoning that raising effective income for the majority of Americans will boost the economy with increased spending.

Original Publication: felahylaw.com May 19, 2016

Dress Code or Discrimination?

Albeit, factory work is a different story, but still, women haven't always had to wear heels to work.
  Image credit of Wikimedia Commons.  

Today the internet is abuzz with the story of a London woman who was asked to go home without pay when she showed up to her new office wearing flats instead of heels. According to her manager, 2–4 in. heels are required as part of a professional dress code.

The young woman, Nicola Thorp, protested asking if men were held to the same standard, and then claimed that wearing heels for the duration of her nine hour shift would make her job prohibitively uncomfortable.

In general the courts uphold the rights of employers to require and enforce a dress code, it is also acceptable to have different dress requirements for men and womenas long as both sexes are held to similar grooming standards.
 

What is not acceptable, according to U.S. law at least, is holding the sexes to different dress standards or establishing a dress code that causes an undue burden for employees. For example an employer cannot allow men in the office to dress casually while requiring professional attire from the women. 

Nor can an employer enforce a dress code that makes the workplace less safe, obvious examples include factory work where loose sleeves and hair can be caught in machinery.

Employers are required to make reasonable accommodations to the dress code for people in special circumstances. Employees whose beliefs require them to wear a hijab or yarmulke must be accommodated unless their head wear is a safety concern.    

Nothing about Thorp's employer's dress code is illegal or discriminatory in the U.S. or England, but maybe that's part of the problem. This issue is reminiscent of the debate over whether or not women should be allowed to wear pants to work, something that seems likes a non-issue today.

But the state of California does have specific language within its Fair Housing and Employment Act protecting the right of women to wear pants to work if they want. Perhaps, in the near future, this issue of high heels will look just as obvious as the pants issue.

Originally published May 11, 2016 at felahylaw.com

Does the Young Woman Suing Getty Foundation Have a Case?

And Does it Really Matter?

Carolina Miranda of the LA Times seems to think so. Her article published on May 10 suggests that if the case gets any traction it could set a dangerous precedent for programs, institutions, who want to promote cultural diversity in employment.

While media outlets and bloggers alike have been quick to treat this story as another opportunity to wag the finger at finicky millenials, who in the blogosphere are both hyper sensitive to issues of racism and privilege, and inured to them. Miranda appears to be alone in seeing a little beyond the horizon, raising the issue of what will happen if a seemingly frivolous lawsuit gets taken seriously by the court.

The case in question is still a complaint at this point, filed on April 29 in Los Angeles Superior Court, on behalf of plaintiff Samantha Niemann, against Getty Foundation. Niemann, a Southern Utah University student had applied to the foundation's competitive Multicultural Undergraduate Internship program and was rejected, she claims, for being white.

The Getty Foundation partners with art institutions throughout LA County to provide interns from underrepresented groups with valuable work experience and a small stipend. According to their website, students eligible for the internship should be:

of a group underrepresented in museums and visual arts organizations, including, but not limited to, individuals of African American, Asian, Latino/Hispanic, Native American, or Pacific Islander descent.–src.

Niemann, who says she is of German/Italian/Irish descent, contests that not only are people like her underrepresented in the museum world, but also that her academic record should have netted her a position. Representatives of the Getty have been quick to point out that the internships' requirements are not race-based, but based on proportional representation in arts jobs. 

It will be important to note that a fairly recent demographic study conducted by the Mellon Foundation shows that women hold 70% of high level art museum jobs and 84% of people in those jobs are white.  This study is not all-encompassing, but it does seem to indicate that white women are well enough represented in fine art institutions.

Carolina Miranda's bigger point is that if a judge sets a precedent that favors Niemann's claim, then institutions who want to address the issue of racial and cultural representation in employment and education through private means will have their hands tied with discrimination suits.

Particularly of concern is the fact that Getty Foundation is a private institution using their own money to fund internships. Lawsuits similar to this one are, for the most part, filed against public colleges by white prospective students who suspect their admission was hampered by their race.

Niemann's complaint is filed for damages due to discrimination, retaliation, and harassment based on race or national origin, alleging violations of CA code 12940,which bars discrimination in employment and training.

Ultimately facts in this case are scant, and the case itself remains in its most embryonic stage. The topic of racial inequality in employment and training is certainly a tricky one, and while federal and state laws have severely limited once popular affirmative action programs, it is difficult to read the above-quoted eligibility requirements and not see the similarities.

What we can do as citizens of the certainly multi-cultural greater Los Angeles, to address employment inequality, is a topic for much discussion. And this case, funny and inconsequential as it seems now, may be the first murmurs of where that society is heading on this issue.       

Neither Samantha Niemann nor her lawyers, of Reisner & King LLP, have made a public comment as of this publication.

Originally published May 10, 2016 at felahylaw.com

This New Rule May Strengthen Checks to Big Banks

Consumer watchdog, the Consumer Financial Protection Bureau, submitted an ambitious proposal for public comment this Thursday. The proposed rule would greatly limit the ability of large banks "to bar the consumer from filing or participating in a class action with respect to the covered consumer financial product or service."

In short, the new rule would keep banks and other financial institutions from locking customers into contracts that restrict legal recourse for contract violations and hidden costs— specifically it allows credit and debit card holders to take part in class action suits against their banks. In their summary, the bureau states:

[Pre-dispute] arbitration agreements are being widely used to prevent consumers from seeking relief from legal violations on a class basis, and that consumers rarely file individual lawsuits or arbitration cases to obtain such relief.

A bureau reportshows that arbitration decisions tend to favor institutions at the expense of consumers. Between 2010 and 2011, arbitration agreements awarded $2.8 million to businesses compared to just $400,000 to consumers.

This report indicates that credit and lending institutions in particular are using arbitration agreements to shield themselves from consumer backlash concerning overage fees, late fees, and hidden charges. It also shows that consumers rarely enter arbitration for small claims, with only 505 consumers between 2010 and 2014 going to arbitration over claims of $2,500 or less.

This means that banks are operating on a de facto honor system when it comes to small violations of their terms of service, and the bar against class actions keeps them from being held accountable to the public at large.

A civil court is the one place where, at least in theory, an average person stands on equal ground with a large corporation, and thus since the early 2000's more and more companies have used arbitration agreements to keep consumers out of court.

Class actions enable a large group of consumers to make each of their small claims into one big claim against the company. And these suits are often the only way to hold companies accountable for the small things they think they can get away with. The bureau make their concerns clear in the proposal:

The use of arbitration agreements in such contracts has become a contentious legal and policy issue due to concerns about [...] whether arbitration has proved to be a fair and efficient dispute resolution mechanism, and whether arbitration agreements effectively discourage the filing or resolution of certain claims in court or in arbitration.

The bureau, formed in 2010 as part of the Dodd-Frank Act, is taking a hard stance on financial institutions who have made themselves unaccountable to the American people through legalese and lack of oversight. As arbitration agreements have become ubiquitous in both consumer and employment law, the bureau is making sure ordinary people still have a voice in the courts.

The proposed rule would be a check to the power of the financial industry, which was one of the intentions behind the passage of Dodd-Frank. Many consider checks and balances to the influence of overzealous investment banks key to avoiding the next financial crisis.

Still, it is expected that the proposal will meet with harsh criticism from the financial sector, their lobbyists, and their lawyers. The U.S. Chamber of Commerce, for instance, which despite its name is in no way an affiliate of the U.S. government, has already released a statement attacking the proposal, calling it "the biggest gift to plaintiffs’ lawyers in a half century."

The Chamber is a lobby group which spent over 60 million dollars in 2015, and $136 million during the 2012 election year, to push legislation that keeps large financial institutions out of democratic oversight.
This proposal comes at a time when public trust in banks remains low and increasingly visible segments, like those who support Bernie Sanders, are railing against corporate greed and irresponsibility— even those on the other side of the aisle are tired of corporations that send jobs overseas and stifle competition.

And the banks have reason to worry, with the federal reserve considering not if, but when and how, to raise interest rates. The heady salad days of investment banks, sub-prime loans, and shifty overdraft fees may finally be coming to an end.

Originally publihed at Felahy Employment Lawyers