The DLSE takes the view that, on-call or standby time at the work site is considered hours worked for which the employee must be compensated even if the employee does nothing but wait for something to happen. “[A]n employer, if he chooses, may hire a man to do nothing or to do nothing but wait for something to happen. Refraining from other activities often is a factor of instant readiness to serve, and idleness plays a part in all employment in a stand-by capacity”. (Armour & Co. v. Wantock (1944) 323 U.S. 126) Examples of compensable work time include, but are not limited to, meal periods and sleep periods during which times the employees are subject to the employer’s control. (See Bono Enterprises v. Labor Commissioner (1995) 32 Cal.App.4th 968 and Aguilar v. Association For Retarded Citizens (1991) 234 Cal.App.3d 21)

Whether on-call or standby time off the work site is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable “hours worked.” These factors, set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include whether there are excessive geographic restrictions on the employee’s movements; whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and whether and to what extent the employee engages in personal activities during on-call periods.
 

Among the seven hundred or so new laws that took effect on January 1, 2011 is SB 1411 that makes it a misdemeanor for anyone to impersonate another on the internet “for the purposes of harming, intimidating, threatening, or defrauding another person.” The bill, which was signed into law by Governor Schwarzenegger, adds section 528.5 to the California Penal Code and makes the offense punishable up to $1,000 and one year imprisonment.

The law specifically makes it an offense to open an email account or social networking profile to impersonate another person:

For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

The law is intended to prevent cyberbullying that has occurred in schools and the workplace. This law will be an additional aid for employers to prevent any type of abuse at the workplace, and provide victims an additional avenue for protection. In addition to the criminal punishment set forth, it also provides that a victim may bring a civil lawsuit against the defendant for compensatory damages and injunctive relief.

For California employers, the new law stresses the need to keep current with the new obligations employers face in regards to social networking sites and and to review their policies about how they monitor employees’ use of technology, as well as what is appropriate uses of the company’s technology. Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. Therefore, if an employee uses a company computer to violate the new law, the company could face joint liability in a civil lawsuit for compensatory damages.

Q:  Is it “Illegal” to work with a relative as your co-worker or supervisor, or is it left up to the facility/business to make rules regarding how/who they hire as their employees?

There is nothing in California law that prohibits family members from working together. However, many companies institute non-fraternization or anti-nepotism policies as a safety measure to prevent work-place disputes that boil over from non-work relationships as well as to avoid claims of sexual harassment or discrimination. In fact, it is advisable for companies to have such policies.

One of the most problematic areas that arises is when two employees are dating, but the relationship goes sour. As you can imagine, this creates an awkward working environment that will take away from the employees’ productivity, in addition to exposing the company to a sexual harassment claim if one of the employees continues to pursue the other while at work. Also, if the relationship was between a supervisor and a subordinate, the company faces liability if the supervisor favors the person he/she is having the relationship with over other employees when making decisions about bonuses or promotions.

To avoid this problem, many companies have policies in place the either prohibit relationships at work, or some companies require the employees to disclose the relationship. Then the company can work with the employees to see if moving one or both employees to different divisions and/or locations within the company could prevent any potential problems should the relationship not workout in the future. Employers have to walk a fine-line however, because employees have an expectation of privacy about their personal lives while away from work, so employers cannot have too evasive policies. It is best to have a knowledge CA employment lawyer review the policy in advance.

The Wall Street Journal reported yesterday about the difficulties employers are facing when employees are found to have marijuana in their systems while at work.  The article notes employees are asking if they could use their company-provided flex spending accounts to purchase the medical marijuana.  There are many issues that will have to be resolved in this newly developing area of the law.  However, in California, employers were given pretty clear guidance by the California Supreme Court in Ross v. Ragingwire Telecommunications, Inc. about employees’ rights in the workplace when using medical marijuana. 

In Ross, the California Supreme Court held that it is not a violation of California law for an employer to terminate an employee who tests positive for marijuana, even though the employee was prescribed the marijuana for medical purposes under California’ Compassionate Use Act of 1996.

The conflict in Ross v. Ragingwire Telecommunications, Inc. was between California’s Compassionate Use Act, (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and Federal law (which prohibits the drug’s possession, even by medical users). The employer in this case terminated plaintiff’s employment based on a positive test for marijuana even through the plaintiff provided a doctor’s note explaining that he was prescribed marijuana to alleviate back pains. 

The Supreme Court explained that the employer’s decision to terminate plaintiff was not illegal:

Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883.)

Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act’s effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495). Instead of attempting the impossible, as we shall explain, California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.

The Court also provided that a reasonable accommodation, as required under California’s FEHA, does not include an employer’s permission to use illegal drugs:

 

The FEHA does not require employers to accommodate the use of illegal drugs. The point is perhaps too obvious to have generated appellate litigation, but we recognized it implicitly in Loder v. City of Glendale, supra, 14 Cal.4th 846 (Loder). Among the questions before us in Loder was whether an employer could require prospective employees to undergo testing for illegal drugs and alcohol, and whether the employer could have access to the test results, without violating California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.). We determined that an employer could lawfully do both. In reaching this conclusion, we relied on a regulation adopted under the authority of the FEHA (Cal. Code Regs., tit. 2, § 7294.0, subd. (d); see Gov. Code, § 12935, subd. (a)) that permits an employer to condition an offer of employment on the results of a medical examination. (Loder, at p. 865; see also id. at pp. 861-862.) We held that such an examination may include drug testing and, in so holding, necessarily recognized that employers may deny employment to persons who test positive for illegal drugs. The employer, we explained, was “seeking information that [was] relevant to its hiring decision and that it legitimately may ascertain.” (Id. at p. 883, fn. 15.) We determined the employer’s interest was legitimate “[i]n light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees — increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover . . . .” (Id. at p. 882, fn. omitted.) We also noted that the plaintiff in that case had “cite[d] no authority indicating that an employer may not reject a job applicant if it lawfully discovers that the applicant currently is using illegal drugs or engaging in excessive consumption of alcohol.” (Id. at p. 883, fn. 15.) The employer’s legitimate concern about the use of illegal drugs also led us in Loder to reject the claim that preemployment drug testing violated job applicants’ state constitutional right to privacy. (Id. at pp. 887-898; see Cal. Const., art. I, § 1.)

(footnote omitted).

The Plaintiff also alleged a cause of action for wrongful termination in violation of public policy. Generally, at-will employees can terminate or be terminated from their job at any time, but an employer cannot terminate an employee for reasons that violate a fundamental public policy of the state. The Court rejected plaintiff’s position that there was a fundamental public policy that permitted him to use medical marijuana and be under its influence while at work explaining: “Nothing in the [Compassionate Use Act’s] text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees."

Last week, Governor Schwarzenegger vetoed SB1121, a bill that would have given farm workers overtime when they work over eight hours in one day or over forty hours in one week. Currently, California farm workers earn overtime for all hours over 10 hours in one day and 60 hours in one week. Federal law, by contrast, does not require employers to pay farm workers any overtime at all.

 

The Governor explained:

In order to remain competitive against other states that do not have such wage requirements, businesses will simply avoid paying overtime.

The bill would have also applied California’s meal and rest break requirements to farm workers. The Governor also cited this as a reason why he vetoed the law:

Finally, it should be noted that Senate Bill 1121 would not just change the rules governing overtime pay for agricultural workers, but would also apply California’s confusing and burdensome rest and meal requirements. Unfortunately, while there have been several attempts to clean up this section of law, efforts at comprehensive reform continue to fail. There is no reason to exacerbate this continuing problem by adding agricultural workers to it. For these reasons, I am unable to sign this bill.

The Governor’s statement is referring to the issues that the California Supreme Court is currently reviewing in Brinker Restaurant Corp. v. Superior Court. One of the many issues being reviewed in Brinker, is whether California employers need to only provide, not ensure, employees with their 30-minute meal break under California law. Click here for more analysis on the Brinker case. 
 

In Faulkinbury v. Boyd & Associates, Inc., Plaintiffs brought a case on behalf of about 4,000 current and former security guards of Boyd & Associates, Inc. Plaintiffs asserted that all guards had to sign an agreement to take on-duty meal periods and that they never took an uninterrupted, off-duty meal break. They also asserted that, while employed by Boyd, they were instructed not to leave their posts and never took any off duty rest breaks.

Meal Break Claim

Defendant Boyd argued that the on-duty meal periods at issue in this case created individualized issues that were not suitable for class-wide treatment by the court. In reviewing defendant’s argument, the court explained that on-duty meal periods are permissible if it meets the “nature of the work exception”:

Under the nature of the work exception, an employer is not required to provide off duty meal breaks “when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on the job paid meal period is agreed to.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(A).) On duty meal period agreements are permitted under Wage Order No. 4 2001, California Code of Regulations, title 8, section 11040, subdivision 11(A). Based on the nature of the work exception, Boyd argues its liability to the Meal Break Class depends on individual issues regarding the nature of the work at each post and whether each employee did in fact take on duty meal breaks.

The court noted that Boyd did have a company-wide uniform policy of requiring security guard employees to take on duty meal breaks and required them to sign on duty meal break agreements. However, the court also recognized that individualized issues still existed. For example, Boyd submitted evidence that guards were able to take meal break “during periods of inactivity” and other guards stated that they are relieved of all duty in order to take a meal break. Boyd also submitted evidence showing that some of its guards were able to take off-duty meal breaks, it depended on the employees’ post they were assigned to, and other factors could make it possible for employees to take an off-duty break. Some employees submitted declarations saying that Boyd’s clients’ in-house security would relieve a Boyd security guard for a meal and rest break and on other occasions a second Boyd security guard would cover the other’s post to enable one of them to take a break.

The court also noted:

The ability of a Boyd security guard employee to take an off-duty meal break sometimes depended on whether the employee was training another employee (“When I am training another security officer we will relieve each other of all duty during meal and rest periods”). Some guards put out a sign saying “on a break” and took an off duty break.
The trial court held, and the appellate court agreed, that these issues were enough to create individual issues of liability predominate over common issues.

Rest Break Claim

The court held that to determine Boyd’s liability for failing to authorize and permit off duty rest breaks, individual determinations would have to be made for each security guard employee for each shift worked.

In at least one declaration, the employee stated he determined, based on the circumstances, when to take a rest break, and “[w]hen these periods occur I place a sign out to inform visitors that I am on break and will be back shortly.” Another employee declared she frequently took rest breaks at her post, but was able to “watch television, read magazines or books, or engage in other non security related activities.”

The court concluded that the evidence established that there was no common proof regarding a finding of Boyd’s liability for rest breaks. Boyd had no formal policy denying off-duty rest breaks, Boyd did not require employees to waive them, and whether a guard took a rest break depended on a number of individual circumstances.

Therefore, the court held that the trial court was correct in holding that the meal and rest break claims were not suitable for class-wide treatment. The opinion, Faulkinbury v. Boyd & Associates, Inc., can be read in full here.
 

This week the internet is buzzing about a waitress who was fired for making disparaging comments on Facebook about a customer.  It was inevitable, and if employers have not realized it yet, this story should bring the point home that social networking is yet another issue employers need to take a proactive step in managing.  This is also a wake up call for employment lawyers who have neglected to come up to speed on the new issues social networking present in the employment context. 

In California, a court has ruled that postings so social networking sites are not private (click here for post).  So while it would be difficult for an employee to have a claim for violation of privacy, employers should consider what they can and cannot do regarding information they learn about employees on the internet as well as conducting background checks on the internet. Some employers have even gone as far as asking prospective employees for their login information for social networking sites as part of the interview process. 

The lesson:

Social networking sites are here to stay.  It is time for employers to manage this issue by learning what they can legally do to protect the company’s interest on the Internet.  Employees and individuals have to realize that the information posted on the Internet is usually discoverable by everyone – it is not only a conversation between friends. 

Yes, you are still reading the California Employment Law Report and not a tech blog.  But since social networking, privacy and how these issues are permeating the workplace, I wanted to pass this New York Times article along to readers that describes all of the different privacy settings in Facebook. 

If you think employers are having a difficult time trying to manage this "new" technology, the article notes that Facebook’s privacy policy has increased from having 1,004 words in 2005 to over 5,800 words in 2010. 

It is an interesting read and can be helpful to discover the types of privacy issues that may arise in the employment context.  Likewise, courts are just beginning to rule on these issues, as a California court held last year that postings on MySpace.com are not confidential. 

The US House of Representatives introduced a bill (H.R. 5107), Employee Misclassification Prevention Act, that if passed would amend the FLSA to required employers who employ “non-employees” to keep records of classification of the non-employees. The bill refers to non-employees, which is targeting employers’ classification of independent contractors.

Should the employer fail to maintain the records required under the proposed bill, a presumption would be created that the worker is an employee – not an independent contractor. The employer could only then overturn this presumption by presenting “clear and convincing evidence” that the worker is properly classified.

The bill would also require employers to provide written notice to any non-employees about their classification. Among other items, the notice would need to state:

Your rights to wage, hour, and other labor protections depend upon your proper classification as an employee or non-employee. If you have any questions or concerns about how you have been classified or suspect that you may have been misclassified, contact the U.S. Department of Labor.

The notice would also need to include additional information that Department of Labor deems necessary by regulation at a later date.

Violation of the proposed bill’s requirements carries a civil fine of $1,100 per worker, which could increase to $5,000 for willful repeat violations.

The bill (H.R. 5107) can be read here. From what I could gather, it appears that the bill has a strong chance of becoming law. This is definitely one I will be keeping my eye on in coming months.

Daniel Schwartz at the Connecticut Employment Law Blog writes about whether or not employment lawyers who advise their clients on social networking policies need to use social networking. I’ve writing on this topic before, but as the Internet becomes more and more dominate in everyday life, Daniel prompted me to revisit the issue. 

While I do not think lawyers need to be IT experts, we all should have a working knowledge of technology, the Internet, social networking sites, and new developing technologies. Technology and the law are becoming so intertwined that I imagine that this will be a component of the MCLE requirement for lawyers within the next 10 years.

Lawyers need to have a working knowledge of technology for a number of reasons. First, IT issues predominate many discovery issues in litigation – and there is a wealth of IT information available through discovery if the attorney has an understanding of what type of information is recorded and how to refer to that information to get it. Second, if a lawyer is advising clients on social networking policies, the lawyer needs to be familiar with the different web sites available and generally how they work. It would, needless to say, be embarrassing to not at least be familiar with some of the more common technical terms, so when advising a client the lawyer does not refer to a “website number”.

Finally, there is no excuse to at least create an account and look around Twitter, Facebook, or LinkedIn – its free and it could be a good excuse to have your son or daughter teach you something. Here is a great list of some of the most used social networking sites one could start with.