On April 12, 2012, the California Supreme Court issued its ruling on Brinker Restaurant Corp. v. The Superior Court of San Diego County.  This case ultimately stemmed from a class action suit in which the plaintiff class consisted of current or former cooks, stewards, buspersons, waiting staff, and host staff who worked in restaurants owned and operated by Brinker Restaurant Corp (“Brinker”).  The plaintiffs brought the class action in response to Brinker’s alleged failure to provide its employees with proper meal periods, rest breaks, or premium wages for work performed during break periods.  The case came before the California Supreme Court so that it could review the question of class certification.  In its analysis of the class certification issues, the Court spelled out the meaning of employment regulations with regards to the following: (1) the rules for providing rest breaks, (2) the employer’s duty to provide a meal period, and (3) the rules governing the frequency of meal periods.  This blog summarizes the rules established in the Court’s analysis of these issues.

Rules for Providing Rest Breaks

The court first discussed the issue of how many rest periods an employee is entitled to during any particular shift.  It determined that the governing law for this issue was Wage Order No. 5, subdivision 12.  Under Wage Order No. 5, the Court spelled out that an employee is entitled to one 10 minute break for a shift of 3.5-6 hours in duration; two 10 minute breaks (or a total of 20 minutes of break time) for a shift from 6-10 hours in duration; and three 10 minute breaks (30 minutes total) for a shift 10 hours or longer.  Brinker, S166350 at page 20.  This rule needed clarification because the Appeals Court below had applied the rule incorrectly due to a misinterpretation of the legislation’s use of the phrase “major fraction thereof.”  However, this Court clarified the rule laid out above, reasoning that the Appellate Court’s application of the rule was irreconcilable with the plain language of the statute.

Employer’s Duty to Provide a Meal Period

With regards to employer provision of a meal period, the issue was whether the employer must ensure that the employee is taking advantage of their meal break or if the employer must merely provide the opportunity for an uninterrupted break.  To answer this question, the Court first referred to the historical governing regulation, Wage Order No. 5, subdivision 11(A), which stated that an employer must provide a “duty free” meal period.  It then checked this principal against section 512, which was passed in 1999 (and cited as Stats. 1999, ch. 134, § 6, p. 1823) to determine if the historical principals were consistent with the most recent legislation.  After analyzing both pieces of legislation, the Court determined both pieces of legislation were consistent with one another.  It further held that under the two statutes, an employer’s duty to provide a meal period are as follows: (1) to relieve the employee of all duties for the meal period, (2) relinquish control over the employees activities, and (3) provide a reasonable opportunity for an uninterrupted 30 minute meal period.  Brinker, page 36.  The employer need not ensure that work is not performed during the period, and no liability attaches if the employee works during the period unless the employer coerces or encourages the employee to do so. [Although the legal standard changed some for imposing liability, the burden remains on the employer and employers should still be cautious about employees working during any such break.]

Rules Governing the Frequency of the Meal Periods

After determining what the employer’s duty was with regard to the provision of a meal period, the Court then turned to how often the employer must provide meal periods.  In order to parse out a definitive rule for how an employer must provide meal periods, the Court again turned to section 512(a) to spell out a definitive rule for how often an employer must provide a meal period.  The court determined that for workers working a shift longer than 6 hours, a meal period must be provided before the start of the 6^th hour of work at the latest; for shifts longer than 10 hours, a second meal period must be provided before the start of the 11^th hour of work.  Brinker, page 36-37.  If the shift is only 6 hours in length, the meal period may be waived in writing by employee; the same is true of the second meal period (but only the second meal period) for 12 hour shifts.  Brinker, page 37.  It is assumed that for shifts less than 5 hours, no meal period need be provided because the shift would conclude prior to the time an employer would be required to provide a meal period.

The full text of the California Supreme Court’s Ruling is available in Word Format at http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC and in Acrobat at http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF.

This case follows on a string of other similar cases discussing the same issue. The California Supreme Court is presently considering this exact issue in two pending cases (Brinker Restaurant v. Superior Court and Brinkley v. Public Storage). As such, it is expected that the California Supreme Court will grant review of this case and hold any decision pending the outcome of Brinker.

The appellate court has also held that the trial court properly denied class certification in this wage and hour class action involving 3,000 employees in more than 130 restaurants. The court held that individual issuers would predominate, because absent a universal practice regarding breaks, plaintiffs would have to explain violations on a restaurant-by-restaurant and supervisor-by-supervisor basis. The appellate court also upheld the trial court’s ruling that the employee’s proffered statistical evidence would not support class certification, because employees would still need to explain how and why breaks were missed. Lastly, the court held that substantial conflicts of interest existed among class members, because the hourly employees often temporarily assumed supervisory duties, including managing meal and rest breaks-meaning that class members would be accusing one another of violating Labor Code provisions.

If you have questions about meal and rest periods for your employers you can give us a call at our office to set up an appointment or compliance review.

Matthew Nelson of Dinsmore & Shohl writes here that UPS just entered into a $12.8 million settlement in a case dealing with the improper classification of their northern California drivers. He writes that “[t]he drivers claimed they were wrongfully classified as independent contractors rather than regular UPS employees, and as a result, were denied the benefits and protections of, among other things, the Fair Labor Standards Act (“FLSA”). Particularly, the drivers focused on the FLSA’s minimum wage and overtime guarantees.”

The drivers alleged that UPS controlled almost every aspect of the working relationship; including, delivery times for packages, that UPS dictated the drivers’ dispatches, set the prices, and even controlled what the drivers wore. Essentially, the drivers claimed they were such an integral part of UPS’s business, that they could not be said to have any separate or distinct business of their own. The court allowed the case to proceed as a class action, and the group eventually included roughly 2,400 UPS delivery drivers. Mr. Nelson also notes that “UPS denied the allegations, but eventually agreed to settle the case for $12.8 million (the settlement received provisional approval, but must still receive final approval from the court).”

If you are an employer utilizing independent contractors in your business, make sure that the classification is correct and that you aren’t simply postponing liabilities to a later point time.

You must properly classify those in your workplace (employee v. independent contractors)]]> http://reddingbusinessandemploymentlawblog.com/2010/03/you-must-properly-classify-those-in-your-workplace-employee-v-independent-contractors/feed/ 0 http://reddingbusinessandemploymentlawblog.com/2009/12/new-mileage-reimbursement-rates-for-employers/ http://reddingbusinessandemploymentlawblog.com/2009/12/new-mileage-reimbursement-rates-for-employers/#comments Mon, 28 Dec 2009 18:15:10 +0000 Shawn McCammon http://reddingbusinessandemploymentlawblog.com/?p=153 California Labor Code §2802 requires an employer to indemnify (reimburse) its employees for all necessary expenses or losses incurred in the course of his or her duties. This includes an employee’s expenses when an employee uses their own vehicle for business purposes. Many employers reimburse their employees on a per mileage basis for use of their own vehicle during business errands.  The reimbursement is used to cover the costs (fuel, insurance, etc..) associated with the use of the vehicle for non-personal use.  However, many employers are not sure what mileage reimbursement rate they should use in making the reimbursement calculation.

While there is no specific reimbursement rate provided for in the Labor Code, there is guidance on the matter in both the Opinion Letters issued by the California Department of Labor Standards Enforcement (DLSE) and Labor Code Section 2802.

The DLSE has stated in its manual and opinion letters that it in the absence of other “evidence to the contrary” it will consider the use of the IRS mileage allowance rate as satisfying the requirement that the employer reimburse the expense’s incurred in use of an employee’s car. Businesses using the IRS mileage rate for calculating reimbursements should therefore be safe from under reimbursing their employees and violating Labor Code Section 2802.

On December 23, 2009, the Internal Revenue Service (“IRS”) issued the mileage rates used to calculate the deductible costs of operating an automobile for business purposes in 2010. Beginning on January 1, 2010, the mileage rates for the use of a car (also vans, pickups or panel trucks) will be $.50 cents per mile for business miles driven.

Failing to reimburse your employees at the proper rate subjects the business to a potential lawsuit, which could seek damages for the amount not properly reimbursed, interest from the date on which the employee incurred the necessary expenditure or loss ,and the employee may also seek all reasonable costs (including attorney’s fees incurred by the employee enforcing the rights granted by Labor Code §2802).

Double check the rates you are using when reimbursing employees for use of their personal vehicle for business purposes.

Section 14 of IWC Wage Order 7 (entitled “Seats”), which is typical of several other industry specific wage orders, requires that (a) all workers shall be provided with suitable seating when the nature of the work reasonably permits it; and (b) when the nature of the work requires standing, the employer must provide reasonable seating in proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.  However, Section 14 does not contain its own penalty provision and does not address seating claims.

The new class action claims assert that employers who fail to comply with Wage Order seating requirements violate Section 1198 of the Labor Code, which makes it illegal to employ an employee under conditions that are prohibited by an IWC Wage Order.  These new seating claims have been brought under the Private Attorneys General Action of 2004 (“PAGA”), which allows recovery for violations of all provisions of the Labor Code except those for which a civil penalty is specifically provided.  PAGA penalties consist of $100 for each aggrieved employee per pay period for the first violation, and $200 for each aggrieved employee per pay period for each subsequent violation.

Prior to the decision in Curie-White v. Blockbuster, the only court opinion to address a seating claim was in Hamilton v. SF Hilton and the decision there weighed heavily in favor of the employer.   However, In Curie-White, the court significantly undermined several of the key defenses that had succeeded in the Hamilton case.  Most significantly, the court ruled that plaintiffs may seek civil penalties under PAGA because the penalty provision of the Wage Order “does not provide a penalty for the violation…specifically a failure to provide seats for employees.”

Given the conflict between the Hamilton and Curie-White decisions, it is likely that the issue will continue to be litigated in the more recent seating claims cases.  The ultimate resolution in those cases will likely determine whether the these seating claims form a new fad in class action litigation.

WHAT TO DO:

• Document any efforts that have been made to determine whether seats are necessary;

• Review and analyze current job descriptions and customer service standards to determine whether they clearly identify jobs where continual mobility and standing are essential functions of the job, and incorporate those standards into the job descriptions;

• Provide an adequate number of suitable seats in a nearby break room and allow employees to use the seats when it does not interfere with the performance of their duties.

Here is a link to Wage Order 7, which contains the relevant Seating Requirements at Section 14

Is there a new wave of Class Action cases coming in California?]]> http://reddingbusinessandemploymentlawblog.com/2009/12/is-there-a-new-wave-of-class-action-cases-coming-in-california/feed/ 0 http://reddingbusinessandemploymentlawblog.com/2009/11/irs-audits-to-increase-starting-2010/ http://reddingbusinessandemploymentlawblog.com/2009/11/irs-audits-to-increase-starting-2010/#comments Mon, 09 Nov 2009 18:35:03 +0000 Shawn McCammon http://reddingbusinessandemploymentlawblog.com/?p=123 Craig Etter and Phillip Pillar of Greenberg Traurig, LLP have posted an article that suggessts IRS workplace audits will increase beginning in 2010.  A portion of their article, reprinted by the Association of Corporate Counsel, is copied below, with a link at the end of this post directing you to the complete article with footnotes.

Internal Revenue Service Will Conduct Thousands of Random Employer Audits Beginning in 2010 Internal Revenue Service (IRS) officials recently stated that the IRS will randomly audit approximately 6,000 U.S. employers for employment tax compliance and proper worker classification. According to reports, the audits will begin in February 2010 and are expected to be completed within three years.1

The IRS intends to audit employers of all sizes and types, including non-profit organizations. The audits are part of the IRS’ National Research Program and have a two-fold purpose, (1) to generate revenue from non-compliant employers and (2) to serve as a statistical sample of employers that are in compliance while identifying areas of non-compliance and techniques used to avoid employment taxes.

The IRS expects to test how much of the estimated $15 billion “tax gap” attributed to employment taxes actually exists and may be closed.2 Also, the IRS expects the statistical evidence will help determine whether legislative or enforcement changes are necessary to address common employment tax evasion techniques.3 As a result, the audits are expected to be exhaustive and will concentrate on five employment tax issues:

1. worker classification,
2. fringe benefits,
3. non-filers,
4. officers’ compensation and
5. employee expense reimbursements.4

While the audits will begin with the examination of federal employment tax returns (Forms 941), the process will involve many other documents that pertain to the employers’ practices in these five areas.

A major focus of the audit will be on employers that have improperly classified their workers as independent contractors instead of employees. There are many temptations to misclassify workers: (a) shifting the cost of employment taxes to workers, (b) avoiding employee benefit costs, and (c) eliminating responsibilities under employment laws, such as civil rights or wage and hour laws. However, employers who misclassify their workers as independent contractors risk significant tax liabilities upon detection by the IRS, even if the employee paid the employment taxes due.5

Other issues that may be raised include proper treatment of (i) fringe benefits and per diems as tax-free, rather than as compensation subject to income and employment taxes, (ii) employee expense reimbursements that must comply with accountable plan rules for exclusion from employees’ gross income and (iii) executive compensation as reasonable in amount. The wide-ranging audit program is part of a trend to crack down on employment tax non-compliance, which includes heightened enforcement at the federal level6 and an increasing number of states sharing information with the IRS regarding questionable tax practices.7 Employers of every size and type should realize that their compliance with federal employment tax obligations may be scrutinized, and that they should review their compliance programs with their tax advisors before the audits begin.

For the full article with footnotes, click here.

For tax withholding changes that were effective November 1st – check this post too.

For help with compliance check out this post on hiring outsourced general counsel.

California Labor Code section 2802 provides that “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”  And Section 2804 further provides that “Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void.”

The Court addressed the question of what happens when an employee does not report the expense according to company policy, and held, in effect, that the requirements of the statute must override any internal reimbursement rules set by the employer. California employees have a right to be reimbursed for their work related expenses, such as business travel, equipment, materials, and training, when the employer knows or has reason to know that the employee has incurred the expense, even when the employee fails to follow internal reimbursement protocol established by the employer.

Employers should continue to create policies and procedures for expense reimbursement; however, they should also recognize that they remain liable to reimburse the employee’s expenses even when the employee fails to adhere to the exact terms of the reimbursement policy. Case law now provides that the employee’s failure to follow company reimbursement protocol will be an unlikely defense for employers who fail to make a valid reimbursement required under Labor Code 2802.

For meal periods: Remember that no employer shall employ any person for a period of more than five (5) hours without providing them with a meal period of not less than 30 minutes, except that when the person is working less than 6 hours a day the employee may waive the meal period. The waiver, however, must be in writing, signed by the employee and in the personnel file ahead of time. The employee has the right to revoke the wavier too.

For days when the employee will be working more than 10 hours, the wage order requires you to provide a second 30 minute meal period for the employee, except that if the total hours worked will not be more than 12 hours for the day, the employee may waive the second meal period if they actually took the first meal period and have a signed waiver in their file ahead of time.

Unless the employee is relieved of all duty during a 30 minute meal period, the meal period will be considered an “on duty” meal period and counted as time worked. An “on duty” meal period is only allowed only 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. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

If you fail to provide your employee with a meal period as outlined above, you are required to pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. These penalties can add up fast so you need to make sure your employees are tracking their time worked, their meal periods, and whether they missed the meal period. You should also be tracking when you paid them the one hour penalty, which should be right away after finding out about any missed meal period.

Similar to the meal periods (except rest periods are paid breaks), every employer shall authorize and direct that all employees take a rest period, which insofar as practical should be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.  However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. If you call someone off break before the get their net 10 minutes, you should give them a new 10 minute break after whatever necessity that required they be called back to duty has ended.

Like the one hour penalty in the meal period context, if an employer fails to provide an employee a rest period in accordance with the applicable provisions of the wage order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

Often times the employer feels bad about disciplining the employee who works through a meal period because they are simply trying to work hard. Let them know that its nothing personal (you are not trying to punish hard work), but as the employer you can be held liable for missed meal and rest periods, so they must take them or face discipline.  You can and should discipline employees who do not adhere to company policy regarding the tracking and taking of meal and rest periods.

Also, where the employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, the employee should be compensated for two (2) hours at the employee’s regular rate of pay.

The Reporting Time Pay is not applicable when:

(1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or
(2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
(3) The interruption of work is caused by an Act of God or other cause not within the employer’s control.

Reporting Time Pay is also not applicable for employee on paid standby status who are called to perform assigned work at a time other than the employee’s scheduled reporting time.

For some compliance tips on meal and rest periods – check out this post too.