With the fires effecting large portions of Southern California and Los Angeles this week, it is a good time to review some of the obligations employers have in regards to pay and leave issues during times of natural disasters.  The picture above is one I took showing the smoke covering the northern part of Los Angeles on a flight to Napa on Thursday night.  It was just a couple of months ago I wrote about this topic when Napa faced the same situation of wild fires in October.  So for regular readers of the blog, this article will be a refresher course, but I thought it would be important to cover this topic again in today’s Friday Five:

1. Reporting time pay obligations

California law requires an employer to pay “reporting time pay” under the applicable Wage Order.  This requires that when an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.

In addition, if an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

California’s Labor Commissioner provides the following example:

For example, if an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

Employers must remember, when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.

2. Time paid as reporting time pay does not trigger overtime pay

Reporting time pay for hours in excess of the actual hours worked is not counted as hours worked for purposes of determining overtime.

3. Reporting time pay and meetings

There has been significant litigation over reporting time pay that is owed when employees are called in for meetings.  If an employee is called in on a day in which he is not scheduled, the employee is entitled to at least two hours of pay, and potentially up to four hours if the employee normally works 8 hours or more per day. See Price v. Starbucks.

However, if the employer schedules the employee to come into work for two hours or less, and the employee works at least one half of the scheduled shift, the employer is only required to pay for the actual time worked and no reporting time is owed.  See my prior post on Aleman v. AirTouch for a detailed discussion.

4. Exceptions to the reporting time requirements – “Acts of God”

The Wage Orders provide that employers are not required to pay overtime pay during the following circumstances:

  1. When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue; or
  2. When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
  3. When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake.

5. What if the employee voluntarily leaves early?

Employers are not required to pay reporting time pay if the employee voluntarily leaves work early.  For example, if the employee becomes sick or must attend to personal issues outside of work and leaves early, then the employer is not obligated to pay reporting time pay (however, this may trigger paid sick leave or other legal obligations for the employer).

Matt Lauer’s abrupt departure from NBC illustrate important lessons employers should take away from this week’s events in how to investigate and respond to harassment claims.  It is important it note that NBC is not like most employers in that this one of the most newsworthy and public harassment allegation cases in the nation and it must manage public relations at the same time of mitigating its legal liability.  However, there are still lessons employers should pay attention to arising out of this case, leading to this Friday’s Five:

1. Be up-front and as accurate as possible in any initial reports or disclosures to the public

Employers need to be very careful in issuing any public statements about harassment allegations and investigations.  As set forth below, in addition to likely being evidence in litigation, it could create additional defamation liability for all of the parties involved.

If a company does issue a statement, it needs to be well vetted and with knowledge of all of the facts.  For example, NBC’s responses to the Lauer issues raised questions.  First NBC issued a statement from Chairman Andrew Lack read on the Today Show Wednesday morning stating that the woman’s complaint was “the first complaint about his behavior in the over twenty years he’s been at NBC News.”  Later in the same day, NBC released a second statement stating, “We can say unequivocally that, prior to Monday night, current NBC News management was never made aware of any complaints about Mat Lauer’s conduct.”  The fact that NBC issued a qualifying explanation that “current NBC News management” was never informed later in the day, when initially the company said that there was no complaint ever made about Lauer, had raised many questions: did former NBC News management know of complaints?  If so, what, if any, actions did the company take in response to those complaints?

2. Don’t rush to make any disclosures to the public

Even though the company’s intentions may be good in making disclosures as quickly as possible, it can create some issues, such as:

  • Making statements that may not be accurate because all of the facts have not been discovered and all of the witnesses have not been spoken to. Even though it may not be intended, providing changing facts makes it look that the company is attempting to cover up issues.
  • Creating additional legal liability: statements issued publicly will be evidence in any resulting litigation, and could be used against a party in the litigation.

As discussed below, given the liability that could be created, employers should think twice about issuing any statements to third-parties that do not have a need-to-know.

3. Be careful in discussing any aspect of the complaint and investigation to third-parties who do not have a need to know

Employers must also be careful about issuing any statements to other employees in the company or to the public that could result in a defamation charge by the alleged victim or the alleged harasser.  Employers can be liable for defamation for statements made about the employee’s termination, statements made during investigations, or statements about the employee after they left employment.  Generally, to prove defamation, a plaintiff needs to prove “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.”  Taus v. Loftus (2007).  A plaintiff must show that the statements caused damages such as damage to their reputation, that the statements made it harder to find another job, or emotional distress.  Again, it is critical that employers do not rush to make any statements before all of the facts are known.  A good rule of thumb is to only discuss the allegations, investigation, and ultimate findings about the investigations with the parties involved and individuals who have a need to know.

4. Must conduct “immediate and appropriate corrective action” in the workplace

Employer must act quickly in addressing the potential harassment in the workplace.  How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) the employer’s response was held to be prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after plaintiff filed charge with state FEP agency, even though the harasser was eventually discharged.  In Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) the court found that the investigation was prompt when it started one day after complaint and a detailed report was completed two weeks later.  In Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) the court held that the investigation was prompt when completed within one week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) found the investigation was adequate when completed in four days.

However, employers have no duty to report findings to the public or other third-parties that do not have an interest in the harassment allegations and the subsequent investigation.  High profile harassment claims do carry an additional public relations aspect that must be considered, but employers have not legal duty to report findings to the public.  In fact, doing so may create additional liability as discussed above.

5. Employers may have to take actions internally before conducting the investigation

Based on the allegations and the facts of the case, as a precautionary measure, the employer should analyze if any immediate steps needs to be taken.  The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, the employer needs to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”

The type of precautionary actions that the employer should take depends on the facts they are presented with, as each case will vary.

Happy Thanksgiving.  I hope everyone is getting some time to relax and enjoy some time with their families.  Entering the holiday season, it is a good time to review employer’s obligations to accommodate requests for time off for holidays and best pay practices during holiday leaves.  This Friday’s Five covers five reminders for employers about holiday leaves and pay:

1. California employers are not required to provide employees time off for holidays.

There is no requirement that California employers provide time off (except for religious accommodations – see below) for holidays. California’s DLSE’s website states the following:

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it close its business on any holiday, or that employees be given the day off for any particular holiday.

2. California employers are not required to pay for time off for holidays, nor are they required to pay additional wages if employees work on holidays.

Likewise, there is no requirement that employers pay employees extra pay or “holiday pay” for work performed on holidays. Employers can voluntarily agree to pay employees extra pay for work that is required during holidays, but these terms would be governed by policy set forth by the employer. Therefore, employers are urged to make sure their holiday pay policies are clearly set forth.

California’s legislature has proposed bills that would require certain employers to pay employees double time for work done on Thanksgiving, but none of these bills have become law.  For example, the “Double Pay on the Holiday Act of 2016” proposed to require an employer to pay at least 2 times the regular rate of pay to employees at retail and grocery store establishments on Thanksgiving. None of these attempts by the legislature have been successful yet in requiring California employers to pay any extra “holiday pay.”

3. Employers must provide reasonable accommodations for employees who cannot work on certain holidays due to religious observances.

Employers need to be aware of any religious observances of their employees since employers need to provide reasonable accommodations for employees due to religious reasons. The analysis of reasonable accommodation is required is a case by case analysis based on the company’s type of business and the accommodation requested by the employee. If the employer’s operations require employees to work during normally recognized holidays, such as a restaurant, then this should be communicated to employees in the handbook or other policies and set the expectation that an essential function of the job requires work during normal holidays.

4. If an employer does pay for time off during holidays, the employer does not have to allow employees to accrue holiday paid time off.

If an employee leaves employment before the holiday arrives, the employer is not required to pay the employee for the day off.  But the employer’s policy regarding holiday pay must be clearly set out and be clear that this type of benefit does not accrue to employees and that they must be employed during the specific holidays to receive the holiday pay.  Often the employer will also require that the employee works the days leading up to and following the holiday in order be eligible for the holiday pay.

5. If a pay day falls on certain holidays, and the employer is closed, the employer may process payroll on the next business day.

If an employer is closed on holidays listed in the California Government Code, then the employer may pay wages on the next business days.  The DLSE’s website explains this, and other considerations, for the timing requirements for payroll.  The holidays listed in the Government Code are as follows:

  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • Day after Thanksgiving
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

The DLSE’s website provides the definition of “holiday” here.

The U.S. Supreme Court heard oral arguments on October 2, 2017 in Epic System Corp. v. Lewis.  And while the case may not make headline news, it has very important ramifications for employers across the country.  At issue is whether employers can legally compel employees to enter into arbitration agreements which contain class action waivers.  The decision is likely to be decided by the U.S. Supreme Court this December.  Below are five issues regarding the Supreme Court’s decision and the impact it may have on employer’s businesses going into 2018:

1. There is a split in Circuit Courts regarding if arbitration agreements with class action waivers are enforceable

Many courts have been upholding arbitration agreements that contain class action waivers, including the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC.  That case held that class action waivers are enforceable, following the standards set forth by the U.S. Supreme Court in AT&T Mobility v. Concepcion.

However, the Ninth Circuit’s ruling in Morris v. Ernst & Young holding that a class action waiver in an arbitration agreement is unenforceable because the class action waiver is contrary to the rights provided to employees under the National Labor Relations Act (“NLRA”).  The arbitration agreements in the Morris case were mandatory, and they contained a “concerted action waiver” clause preventing employees from bringing a class action.  Plaintiffs claimed that the “separate proceedings” clause contravenes the NLRA, 29 U.S.C. §§ 151 et. seq.  The Ninth Circuit held:

This case turns on a well-established principle: employees have the right to pursue work-related legal claims together. 29 U.S.C. § 157; Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978). Concerted activity—the right of employees to act together—is the essential, substantive right established by the NLRA. 29 U.S.C. § 157. Ernst & Young interfered with that right by requiring its employees to resolve all of their legal claims in “separate proceedings.” Accordingly, the concerted action waiver violates the NLRA and cannot be enforced.

This holding is contrary to the holdings in the Second, Fifth, and Eight Circuits that have concluded that the NLRA does not invalidate collective action waivers in arbitration agreements.  This split in circuit courts will be resolved by the U.S. Supreme Court’s holding in Epic System Corp. v. Lewis.

2. U.S. Department of Justice changed its position to support class action waivers

Under the Obama Administration, the DOJ supported the position taken by the NLRB that class action waivers found in arbitration agreements violated Section 7 of the NLRA.  However, under the Trump Administration, the DOJ has changed its view and in the summer of 2017 filed an amicus brief explaining it now does not believe class action waivers violate the NLRA.  This further adds to the split in authority that will be resolved by the U.S. Supreme Court’s ruling in Epic System Corp. v. Lewis.

3. Potential benefits of arbitration agreements for California employers

There are a number of benefits for California employers to have arbitration agreements.  One major benefit is the class action waiver discussed above.  For large employers this can be an effective bar from employees bringing class actions.  However, in California, employees still have rights to pursue “representative actions” under the Private Attorneys General Act (PAGA) as discussed below.  Moreover, the arbitration process can proceed faster than civil litigation, saving a lot of time and attorney’s fees in the process.  For example, often the discovery process moves faster in arbitration, and if there are any disputes, the parties can raise them with the arbitrator telephonically, instead of the lengthy and formal motion process required to resolve disputes in civil court.

The arbitration process is also confidential, so if there are private issues that must be litigated, these issues are not filed in the public records of the courts. The parties also have a say in deciding which arbitrator to use in deciding the case, whereas in civil court the parties are simply assigned a judge without any input into the decision. This is very helpful in employment cases, which often involves more complex issues, and it is beneficial to the parties to select an arbitrator with experience in employment law.

4. Potential drawbacks of arbitration agreements in California

While there are many benefits of arbitration agreements, they do not come without a few drawbacks. The primary drawback is that in California, the employer must pay all of the arbitrator’s fees in employment cases. Arbitration fees can easily be tens of thousands of dollars – a cost that employers do not need to pay in civil cases. However, if the company values the confidentiality and speed of process provided in arbitration, and potentially limiting class action liability exposure, this extra cost may well be worth it.

In addition, even if the U.S. Supreme Court rules in favor of employers in Epic System Corp. and upholds the use of class action waivers, the California Supreme Court held that employees may still bring representative actions under the Private Attorneys General Act (PAGA). Even though PAGA claims are limited to specific penalties under the law, and have a much shorter one-year statute of limitations than compared to potentially a four-year statute of limitations for most class actions brought for unpaid wages under the Labor Code, the potential penalties under PAGA can still be substantial for employers.

5. Impact on employers

Employers who utilize arbitration agreements will need to monitor the Supreme Court’s decision in Epic System Corp.  If the Supreme Court rules that class action waivers violate Section 7 of the NLRA, employers will need to review and potentially modify any arbitration agreements with class action waivers.  Such a ruling could spur many more class actions.  With that said, employers should always be auditing their wage and hour policies and practices to ensure compliance with Federal and state laws.

If the Supreme Court holds that arbitration agreements with class action waivers do not violate Section 7 of the NLRA, it is likely that employers can continue to implement the agreements with employees.  However, as mentioned above, California employers still must remain vigilant about their wage and hour practices, as there is still substantial liability under representative actions under PAGA.

Another Friday – another Friday’s Five.  November 2017, a great time to have a refresher course on five obligations employers have under California law to prevent and correct any potential harassment and discrimination in the workplace:

1. Duty to prevent harassment

The Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  As part of this requirement, employers should have policies setting out a definition of sexual harassment, who employees should complain to regarding harassment, explain the types of discipline that may be used in harassment cases, that the complaint will be kept confidential to the extent possible, prohibit retaliation from employees who complain, and be distributed to employees with receipt acknowledged by the employee.

2. Duty to distribute California’s harassment pamphlet

California employers should develop a new hire packet.  One required document in this new hire packet is the California Department of Fair Employment and Housing’s information sheet.  It is required to be provided to employees “in a manner that ensure distribution to each employee.”  This requirement applies to all California employers, regardless of their size.

The DFEH provides the pamphlet (DFEH-185) online for employers to download here.

3. Duty to have written an anti- harassment, discrimination, and retaliation policy

Regulations issued by California’s Fair Employment and Housing Council took effect on April 1, 2016 set forth a requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meet certain conditions.

The regulations provide that employers “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act.”  The regulations set forth that in addition to providing employees the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, employers are required to develop a harassment, discrimination, and retaliation policy that meets certain requirements, including the employer’s complaint procedure, instruct supervisors to report any complaints, and confirm that the employer will conduct a fair and timely investigation, among other items.  Most notably, the new regulations require employers to obtain employees’ acknowledgment of receipt of the written policy.

4. Duty to train supervisors

California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  All covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”  More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.

5. Duty to investigate complaints

California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers.  If the harassment occurs by a manager, the company is strictly liable for the harassment.  If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment.  Investigations must follow certain parameters in order to be deemed adequate under the law.  Click here for more information about conducting adequate investigations.

This Friday’s Five is a bit of a break from the legal updates and a focus on running a business.  Through my profession of defending employers, I get to see a lot of different businesses and a lot of different types of business owners, CEOs, COOs, and Human Resource directors.   There are common characteristics of managers and companies that are successful.  Here are five that predominately standout:

1. You are scrappy.

Gary Vaynerchuk, the successful businessman and digital marketer, has been ranting over the last few years that people need to stop complaining.  He has reminded people that their success is not dependent on their zip code, but instead on their work ethic:

The thought of people saying, “Well, America is an entrepreneurial paradise,” is the same conversation that’s happening within the US to be great in tech, you need to be in San Francisco, and let me just remind everybody that Facebook was invented in Boston. I myself am from the former Soviet Union.

Let me remind everyone that Microsoft came from very humble beginnings as well.  Their first office was located at 6328 Linn Ave. N.E. Albuquerque, New Mexico.  The picture above is a recent picture of the building where Microsoft started.  This was the office of MITS, Inc., the company that invented the first personal computer, the Altair 8800.  Paul Allen and Bill Gates saw the computer on the cover of Popular Electronics and realized that they had to jump at the opportunity and start writing code for the Altair.  Allen and Gates did not complain that the company was in Albuquerque and the office was in a bad part of town on top of it – they flew to Albuquerque and just started working (I’m not sure how many entrepreneurs would do this today).  Also, don’t think that MITS had the luxurious office where the smoke shop is currently – the company had the three offices in the back of the building.  There is a plaque at the site commemorating the office as the start of Microsoft.

I often times think that the new shared work spaces with lunchtime Yoga, juice machines and networking mixers every night of the week may actually have prevented some entrepreneurs from starting the next Microsoft.  Working in a strip mall in Albuquerque, New Mexico may not be glamorous, but it is distraction free.

2. You don’t stop working.

As I often say to clients in litigation, we cannot control the actions of the opposing party, we can only control what we do.  One of the biggest factors that an entrepreneur, business owner, or HR manager can do to be successful is to keep working.  This by no means will guarantee success, but not working hard will necessarily lead to failure.  Setbacks and failure are inevitable, the only response is to keep working.  This is easy to say, but probably the hardest to execute.

3. You don’t care what others think.

Successful business operators have the ability to disregard what everyone else around them is saying.  They disregard the critics who say their task is impossible, or the market that shows them evidence that multiple businesses like theirs have failed in the past.  The reality is the entrepreneur/business owner did what everyone else is doing, they would not be successful – they would be like everyone else.

4. Yet, you still listen to feedback.

However, while being able to block the critics, successful entrepreneurs/business owners are not operating in a vacuum.  They still value the feedback from a select few people they trust, and use this feedback to change directions if needed.

5. You seek counsel early.

Successful entrepreneurs/business owners also realize what they are not good at, and rely on other expects for this guidance.  To be successful you have to focus on your strengths and avoid getting marred down in the issues that you don’t prefer doing, and most likely are not the best at performing.  Accountants, lawyers and other professionals bring years of experience to the problem and save a lot of time and resources in the long run.

It has been a few years that the California Supreme Court issued its groundbreaking ruling in Brinker Restaurant Group v. Superior Court.  With the end of the year approaching and employers preparing for the new year and the new legal obligations that come with it, now is a good time for employers to audit meal and rest break policies and practices. Regular readers of the blog are familiar with these issues, but it is always a good practice to review these issues at least once a year and audit meal and rest break policies and practices.  This Friday’s Five covers five issues employers should not forget regarding about meal and rest breaks.

1. Timing of breaks.
Meal Breaks
The California Supreme Court made clear in Brinker Restaurant Group v. Superior Court that employers need to give an employee their first meal break “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.” Here is a chart to illustrate the Court’s holding:

Rest Breaks
As for of rest breaks, the Court set forth that, “[e]mployees 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.” This rule is set forth in this chart:

In regards to when rest breaks should be taken during the shift, the Court held that “the only constraint of timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable.’” The Court stopped short of explaining what qualifies as “insofar as practicable”, and employers should closely analyze whether they may deviate from this general principle.

2. Rule regarding waiver of breaks.
Meal Breaks
Generally meal breaks can only be waived if the employee works less than six hours in a shift. However, as long as employers effectively allow an employee to take a full 30-minute meal break, the employee can voluntarily choose not to take the break and this would not result in a violation. The Supreme Court explained in Brinker (quoting the DLSE’s brief on the subject):

The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.

Rest Breaks
Rest breaks may also be waived by employees, as long as the employer properly authorizes and permits employees to take the full 10-minute rest break at the appropriate times.

3. Timekeeping requirements of meal breaks.
Meal breaks taken by the employees must be recorded by the employer. However, there is no requirement for employers to record 10-mintute rest breaks.

4. Implementing a procedure for employees to notify the company when they could not take a break.
If employers have the proper policy and practices set up for meal and rest breaks, the primary issue then becomes whether the employer knew or should have known that the employee was not taking the meal or rest breaks. Therefore, many allegations that the employer was not providing the required breaks can be defended on the basis that the employer had an effective complaint procedure in place to inform the employer of any potential violation, but failed to inform the employer of these violations.

5. Implementing a policy of paying employees for missed breaks and recording these payments.
Employers should show that in addition to the complaint procedure mentioned above, that the company has a system in place to correct any violations. If during an investigation, the employer confirms that the employee in fact missed the break because of the rush of business or some other factor, the company should pay the employee the one hour “premium pay” penalty at the employee’s regular rate of pay. Also, the company should record these payments made to employees in case it needs to prove later on that it has an effective remedial process in place to address missed breaks.

California employers cannot forget about detailed employment provisions such as reporting time pay.  Given the natural disasters facing California recently, I was interviewed on public radio about employer’s obligations during times of emergencies and natural disasters.  So I thought this Friday’s Five would be a good reminder about when employers need to pay reporting time pay to employees:

1. What is reporting time pay?

California law requires an employer to pay “reporting time pay” under the applicable Wage Order.  This requires that when an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.

In addition, if an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

California’s Labor Commissioner provides the following example:

For example, if an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

Employers must remember, when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.

2. Time paid as reporting time pay does not trigger overtime pay.

Reporting time pay for hours in excess of the actual hours worked is not counted as hours worked for purposes of determining overtime.

3. Reporting time pay and meetings.

There has been significant litigation over reporting time pay that is owed when employees are called in for meetings.  If an employee is called in on a day in which he is not scheduled, the employee is entitled to at least two hours of pay, and potentially up to four hours if the employee normally works 8 hours or more per day. See Price v. Starbucks.

However, if the employer schedules the employee to come into work for two hours or less, and the employee works at least one half of the scheduled shift, the employer is only required to pay for the actual time worked and no reporting time is owed.  See my prior post on Aleman v. AirTouch for a more detailed discussion.

4. Exceptions to the reporting time requirements – “Acts of God”.

The Wage Orders provide that employers are not required to pay overtime pay during the following circumstances:

  1. When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue; or
  2. When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
  3. When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake.

5. What if the employee voluntarily leaves early?

Employers are not required to pay reporting time pay if the employee voluntarily leaves work early.  For example, if the employee becomes sick or must attend to personal issues outside of work and leaves early, then the employer is not obligated to pay reporting time pay (however, this may trigger paid sick leave or other legal obligations for the employer).

AB 168 was approved by Governor Brown on October 12, 2017 which prohibits employers from seeking or taking into consideration an applicant’s prior compensation and benefits when determining whether to hire the applicant, and in setting the applicant’s compensation and benefits.  The new law creates Labor Code section 432.3.  This Friday’s Five covers five issues of the new law that employers must understand:

  1. The law applies to all employers, regardless of size, effective January 1, 2018.
  2. Employers may not rely on salary history information of an applicant in determining whether to offer employment and in determining the about of compensation to offer.
  3. Employers may not seek salary history information, which includes compensation and benefits, about the applicant.
  4. Upon a reasonable request, an employer must provide the “pay scale” for the position to an applicant.
  5. Nothing in the law prohibits employees from voluntarily disclosing salary history to a prospective employer.

Employers should start taking steps to comply with the new law by the beginning of the new year to ensure compliance.  Some steps to consider include:

  • Train hiring managers about new law and that they are not to seek information from applicants regarding prior salary and benefits history.
  • Remove any requests or questions about salaries at prior employment on applications or other documents provided to candidates.
  • Prepare a set “pay scale” for the positions the employer is hiring for. The law does not set forth what information must be included on the pay scale.  In addition, the law does not explicitly require that this information must be provided in writing to the applicant.  However, employers should consider whether the pay scale should be done in writing in case there is a dispute about whether the pay scale was provided to the applicant and what information was conveyed to the applicant.

In addition to the “sanctuary state” legislation signed into law by Governor Brown yesterday, the Governor also signed AB 450 into law.  The law is effective January 1, 2018, and requires, among other items, employers to verify that immigration officials have a judicial warrant or subpoena prior to entering the workplace and for employers to provide notice to employees if there has been a request to review the employer’s immigration documents, such as Form I-9s.  The new law puts employers in a difficult situation of having to comply with federal immigration law obligations on one hand and state law requirements on the other, with large penalties that could result for violations of either law.  This Friday’s Five discusses five key aspects California employers must understand about the new obligations created by AB 450.

1. Employers may not voluntary consent to an immigration enforcement agent to enter any nonpublic areas of “a place of labor” without a subpoena or judicial warrant.

The new law provides that employers cannot provide voluntary consent to an immigration enforcement agent to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.”  This prohibition does not apply to I-9 Employment Eligibility Verification form and “other documents for which a Notice of Inspection has been provided to the employer.”

2. Employers must give notice to employees of any immigration review of employment records.

Employers are required to post information about any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.  The notice must be posted in the language the employer normally uses to communicate employment-related information to the employee.  In addition, the notice must include the following information:

(A) The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

(B) The date that the employer received notice of the inspection.

(C) The nature of the inspection to the extent known.

(D) A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

The Labor Commissioner is required to publish a template for employers to use by July 1, 2018.

3. An employer, upon reasonable request, shall provide an “affected employee” a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

An “affected employee” is an employee identified by the immigration agency inspection results to be “an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.”

The employer is required to provide the affected employee a copy of the written immigration agency notice that provides the results inspection within 72 hours of after receipt of the notice. In addition, the employer shall also provide written notice of the obligations of the employer and the affected employee arising from the results of the records investigation.  The notice needs to relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known.

4. Except as otherwise required by federal law, employers cannot reverify the employment eligibility of a current employee at a time or in a manner not required by federal law

Violations of this provision can result in civil penalties up to $10,000.

5. Potential penalties.

Penalties for failure to provide the notices required under the new law are $2,000 up to $5,000 for a first violation and $5,000 up to $10,000 for each subsequent violation.  The penalties will be recovered by the Labor Commissioner.