“
has more practicing attorneys than any country
in Europe, says attorney Christopher C. Hoffman, “and 6082 more people
passed the
bar exam last year.” Couple that with a “legislature that actively
seeks to make things more difficult for employers,” and you’ve got
trouble.
“
earned reputation for spawning new legal theories, nurturing anti-employer
rules and regulations, and its courts are sympathetic (as is the 9th Circuit).
Combined, it creates a perfect storm for
employers,” Hoffman says.
Hoffman is
the regional managing partner of Fisher & Phillips, LLP in
Resource Management (SHRM) Annual Conference and Exhibition, held recently in
The
federal Fair Labor Standards Act sets minimum requirements for most employers,
but generally allows the states to impose more stringent requirements. “
gone further with its unique enhancements,” Hoffman says.
First of
all, says Hoffman, when calculating wages, you owe overtime (11/2 times the
“regular rate”) for all hours worked (unless an exemption applies):
- Over 8 hours in a day
- Over 40 hours in a week
- First 8 hours worked on a 7th consecutive
workday in the designated work week (not just any 7 days in a row)
You also
owe double time (2 times the “regular rate”) for all hours worked:
- Over 12 in a day
- After 8 on a 7th consecutive workday (in
designated work week)
About Exemptions from Overtime
Hoffman
pointed out the following about exemptions:
- For executive, administrative, and
professional exemptions, the employee must spend over 50% of working
minutes engaged in exempt activities. “You actually have to do a
minute-by-minute analysis,” says Hoffman. - Technically, rest and meal break rules apply
to exempt employees, but the rule is not enforced.
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Meal and Rest Periods
Hoffman
reviewed the basics of the employer’s meal and rest period obligations. In an
8-hour shift employees are entitled to:
- Two ten minute paid rest breaks (one for
every 4 hours or major fraction thereof) - One unpaid and non-working 30 minute meal
period
Rest
period rules are pretty straightforward, Hoffman says.
- Rest periods are paid time
- Rest periods should be taken as close to the
middle of the 4 hour period as practicable - Wage orders provide that the employer is
only obligated “to authorize or permit.”
The big
questions revolve around meal period rules, Hoffman says.
First, he
says, the meal period basics:
- Meal periods are unpaid
- They require a full uninterrupted thirty
minutes—non-working - They arguably should commence before
employee has worked more than five hours
There is
currently a fight over employer obligations, Hoffman notes. The question is:
- Do we have to require employees to take a
meal period? OR - Do we only have to give them an opportunity
to take a meal period?
“We’re
still waiting to find out,” Hoffman says. Two cases, Brinker Restaurant Corp. and Brinkley
Public Storage are both still pending before the California Supreme Court.
Meal and Rest Period Waivers
Remember,
says Hoffman, meal and rest period waivers are available in limited
circumstances:
- When the employee’s work day is no longer
than six hours and the employee has agreed to waive his/her meal period - The nature of the employee’s work prevents
the employee from being relieved of all duty (for example, an airline
flight attendant) and certain procedures are followed. - The second meal period may be waived, in
writing, as long as first meal period is taken
In
tomorrow’s Daily, the impact of wage
and hour non-compliance, (read fines) and an introduction to a solution for all
your independent contractor challenges.