CA Employers Need Not Force Employees To Take Meal Breaks

CA Employers Need Not Force Employees To Take Meal Breaks

You don’t need to force your employees to take meal breaks.

Generally, the news is good for employers. Just a few hours ago, in Brinker Restaurant Corp., v. Superior Court, the California Supreme Court provided long-awaited answers to some important and hotly litigated meal and rest break issues in California for non-exempt employees. Specifically, the Court clarified when meal and rest periods are required, and what an employer must do to provide meal periods (the Court also addressed class certification requirements as well). Here is some of the more important language from the opinion regarding meal and rest breaks:

Meal Breaks:

“An employer‟s duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. 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.”

“On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer‟s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).”

“Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”

WHAT THIS MEANS: Employers need not “ensure” employees take a meal break. Instead, employers should relieve workers of all duties, and not impede employee’s ability to enjoy an uninterrupted 30-minute meal period. If the employee voluntarily chooses to work during the meal period, the employer is not in violation of the law unless the employer pressured the employee to work during the meal period, or undermined a policy providing for such meal periods.

The Court also clarified that the law requires “a first meal period no later than the end of an employee‟s fifth hour of work, and a second meal period no later than the end of an employee‟s 10th hour of work.” The Court rejected the plaintiffs’ argument that the law imposed additional timing requirements.

Rest Periods:

“Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”

“Construing the plain language of the operative wage order, we find no such requirement [that employers have a legal duty to permit their employees a rest period before any meal period] and agree with the Court of Appeal, which likewise rejected this contention.”

WHAT THIS MEANS: For example, if an employee works an 8-hour shift, the employee is entitled to two 10 minute rest periods. Generally, “one rest break should fall on either side of the meal break.” And, the rest periods should be provided in the middle of each work period “insofar as practicable.”


(1) Employers should make sure their Employee Handbooks and policies reflect that the company provides the requisite meal and rest periods to eligible employees, and the circumstances for, and timing of, each period.

(2) Employers should make sure that managers/supervisors are trained properly to deal with scheduling non-exempt employees’ work shifts and breaks. Managers/supervisors should also be trained to ensure that they are not violating company policies or otherwise making an employee believe that the employee should or must perform work during a meal period.

(3) Employers should also make sure, as always, to keep accurate and updated records of when each non-exempt employee clocks in/out for each shift, and clocks in/out for each rest and meal period. This step requires training managers/supervisors, and good communication with each non-exempt employee.

Small Firm Advantages – A Slam Dunk!

Small Firm Advantages – A Slam Dunk!

Small firm advantages are numerous.

Recently, former VP/Global Head of Legal at eHarmony, Antone Johnson, tackled the question: “Why Are Lawyers So Expensive Even With The Excess Supply Of Lawyers?” Mr. Johnson’s focus was on why large law firms charge their very high rates. Significantly, and not surprisingly, top-notch work quality, dedication, and responsiveness (three important aspects of my practice) were not listed.

Classic lose-lose situation. Mr. Johnson dissected how most large law firms are obsessed with rankings, have huge overhead, and grapple with other aspects of the legal industry that cause their fees to skyrocket. He also reflected that many companies are “fed up with large firms’ endlessly escalating billing rates and cost insensitivity.” As he pointed out, the result is that the legal services industry now has overpriced lawyers sitting around doing nothing, and clients not getting served because they can’t afford those rates. Classic “lose-lose” situation.”

Obvious win-win or slam dunk. Importantly, Mr. Johnson acknowledged that there are alternatives. He noted that “many talented, experienced lawyers hav[e] left big firms [], and technology mak[es] it easier than ever to set up shop as a new solo practice or small firm…” Indeed, business models like mine provide a better alternative for clients who no longer want to (or can no longer afford to) pay large firms for everything except top-notch work quality, dedication, and responsiveness. Mr. Johnson calls such business models “such an obvious win-win — or slam dunk.”

  • If your company still depends on large law firms for employment/HR related issues, I personally invite you to discuss with me how large law firm “escapees,” like me, are able to provide top-notch service without worrying about firm overhead, rankings on the AmLaw100, or carrying the dead-weight of an under-performing practice area.
  • If your company still believes great lawyers are too expensive, and thus, unaffordable, I personally invite you discuss with me how I can help your company at rates much lower than you might think.

Whatever situation your company is in, do not overpay for, or put-off getting, the legal services your company needs. For example, there is usually no good reason to pay (or to delay in fear of) large firm rates to have your company’s Handbooks, policies and employment/severance/confidentiality agreements updated and compliant. Do not overpay for, or put-off, getting advice on tricky employment/HR issues, getting and keeping your company in compliance with wage and hour laws, dealing with social media in employment issues, and getting mandated training done for your employees. And certainly, do not overpay, or go unrepresented, when your company must defend against claims brought before administrative agencies and courts. Indeed, I will be the first one to tell you if your matter would be better served by having a large law firm on your side (perhaps, for example, in defending class actions).

Mr. Johnson’s article in Forbes can be found here.


Will Social Media Harm Your Career?

Will Social Media Harm Your Career?

Can social media harm your upward movement in your career.

Recently, many lawmakers and everyday users of social media have been disgusted by what they think are inappropriate tactics used by employers when screening job applicants. In my article titled: “Why Your Status Updates May Come Back To Haunt You,” I explore the trend of employers investigating job applicants using social media, how employers use what they find, and best practices for employers to avoid violating current laws. For individuals, I also offer tips for managing online information so that you do not raise red flags that may cost you that dream job you always wanted.

The article is published in the April 2012 edition of the Contra Costa Lawyer magazine, the official publication of the Contra Costa County Bar Association. The April 2012 magazine focuses on “Kids in the Law” and on Privacy issues. I am not only proud to be able to contribute to the magazine, but also proud to have been asked to serve a three-year term on the Board of Directors.


March Madness And Workplace Issues

March Madness And Workplace Issues

Do you have workplace issues during March Madness?

The annual march to crowning the men and women’s collegiate basketball champions officially began Sunday when the field of teams was announced. March Madness is perhaps the most watched championship series in sports where about half of the games take place during typical weekday business hours.

According to an survey, approximately 86% of respondents said they plan to spend part of their workday following the tournament, and more than 50% said they plan to devote at least one hour of their workday to the first two days of the tournament. In fact, 6% stated they plan to be absent from work on the first Thursday and Friday of the tournament. Similarly, Challenger, Gray & Christmas, an outplacement firm, estimated 2.5 millions workers will spend an average of 90 minutes a day watching the tournament, and just in the first two days of the tournament, employers will lose approximately $175 million.

Whether or not these studies and estimates are accurate, the reality is that employees will be checking their smartphones and tablets, and perhaps using their employers’ computers and Internet access, for score updates, game highlights, and for game watching.

Some tips for employers:

  • Some employers may already block employee access to non-work related websites. If so, your employees may be relying more on their personal smartphones and tablets for their NCAA fix, so employers should remind employees about their policies regarding use of such personal devices during work time.
  • Employers may also wish to take this opportunity to reiterate the company’s computer usage policies and Internet access policies.
  • Employers may also, or in the alternative, use March Madness as a way to boost employee morale by setting up a break room or empty office with the games playing so that employees can openly watch the games during breaks and build camaraderie with other employees.
  • Employers who encourage, or allow, a March Madness pool/bracket competition should be careful to avoid violating laws against gambling and the company’s own policies on non-solicitation. While gambling laws are rarely enforced regarding these bracket pools, to decrease risk, employers who allow such pools should make it open to any employee who wishes to participate, not require a monetary buy-in, and award a non-monetary prize (gift cards are better than a monetary prize).

Some tips for employees:

  • Plan ahead. If you know you will be glued to watching a particular game, request to use a vacation day as early as possible.
  • Be truthful. Don’t call in sick if you are not really sick. Employers can discipline you for using sick days inappropriately. Whether or not your employer will enforce the sick leave policy due to March Madness is a question to which you should avoid learning the answer.
  • Stay productive at work. Turn your energy and excitement over your team into energy in your work and remain productive. Missing a deadline, or making a costly error, may get you fired.
  • Watch the trash talking. Be careful that your trash talking does not cross the line and become taunting, harassment, bullying or other conduct your employer prohibits.

The Future of the California Fair Employment and Housing Commission

The Future of the California Fair Employment and Housing Commission

The California Fair Employment and Housing Commission is being absorbed into the Department of Fair Employment and Housing.

Today I was one of a small group of attorneys who participated in a conference call with Anna Caballero, California’s Secretary of State and Consumer Services, and Phyllis Cheng, Director of California’s Department of Fair Employment and Housing (DFEH). One of the purposes of the call was to inform stakeholders of the future of the California Fair Employment and Housing Commission (FEHC) and the DFEH. In essence, as the way things are headed, soon the FEHC will no longer exist, and its role will be incorporated into a shielded division within the DFEH. The actual impact on employees and employers may be relatively minor, but this structural change is fairly significant. If you have any questions, input and/or feedback you would like me to pass along to Director Cheng, please let me know.

Here is a summary of the information discussed during the conference call (I thank Director Cheng for providing me this summary and for allowing me to share it):

Governor’s 2012/13 Proposed Budget:

  • The State of California continues to face a $9.2 billion structural deficit.
  • The Governor’s proposed budget plan includes important reforms. It improves government efficiency and pays down debt. It reorganizes state government to make it more efficient and saves tax dollars by consolidating or eliminating functions.
  • The Governor proposes to eliminate the [FEHC]. The Budget includes a decrease of $579,000 ($459,000 General Fund) and 2.5 positions as a result of the elimination of the stand-alone [FEHC] that handles adjudication of employment and housing discrimination cases. Adjudication of employment and housing discrimination cases would be handled by a separate and distinct division of the [DFEH] effectively eliminating the stand-alone [FEHC] and consolidating workload. The DFEH would receive 1.5 positions from the FEHC consolidation as well as the portion of the Attorney General’s cost for defending writ actions. The Department would absorb the rest of the [FEHC’s] functions. The savings to the State would be: $391,000 in 2012/13; and $784,000 in 2013/14 and ongoing.
  • A trailer bill from the Department of Finance with specific language to carry out the Governor’s plan is forthcoming.

Possible Implementation Plan for the Governor’s Proposal:

  • Adjudicatory Function: The [DFEH] currently operates a “separate and distinct division” in its Mediation Division that is behind a firewall and shielded from the rest of the DFEH. To employment the Governor’s proposal, the DFEH would put the [FEHC’s] adjudicatory function behind the confidential firewall of this Division and would rename it the “Hearing and Mediation Division.”
  • Regulatory Function: Under its existing authority, the [DFEH] could establish a permanent DFEH Advisory Committee that would be codified in its procedural regulations. The proposed Advisory Committee would consist of a balanced group of plaintiff and defense attorneys with expertise in fair employment and housing law, along with representatives from the EEOC and HUD, to advise the DFEH on promulgation of regulations that interpret the FEHA, Unruh Civil Rights Act, Disabled Persons Act and Ralph Civil Rights Act.