California Labor Law News
California Labor Law: Last Word on the Lunch Break Lawsuit
Employers no doubt feel the decision was worth the wait - a suit that began in a lower court held that California labor employment law only requires employers to "supply or make available" meal periods. But the Division of Labor Standards Enforcement, which is charged with the responsibility of enforcing wage and hour laws in the state, has another point of view, stating that employers have "an affirmative obligation to ensure the workers are actually relieved of all duty" during meal breaks.
The questions were whether an employer simply provides for meal breaks or does the employer have a legal responsibility to enforce breaks?
The California Court of Appeals upheld the lower court ruling, which is consistent with several decisions at the federal level: California employees are not forced to take their meal breaks - but employers still have to pay them if they do work through their break. However, if an employee chooses to work through their lunch break, the court ruled that an employer "will not be liable for premium pay." Rather, "it will be liable for straight pay, and then only when it 'knew or reasonably should have known that the worker was working through the authorized meal period.'"
The court made it absolutely clear that the employer has no obligation to ensure that an employee does absolutely no work during his legally mandated lunch break.
Under California law - Labor Code section 512 and Wage Order No. 5 - employers are only obligated to provide hourly employees with a lunch break. That obligation is satisfied "if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period."
"We conclude an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires," Justice Kathryn Mickle Werdegar wrote in the unanimous decision. "But the employer need not ensure that no work is done."
The court's analysis of the lunch break lawsuit further explained what would happen if an employee chose to work through his lunch break. In a nutshell, a California employee can't file a lunch break lawsuit if he (1) freely chooses to work through lunch, and (2) gets paid his regular hourly rate for doing so.
The wage and hour case that morphed into the Lunch Break Lawsuit began in 2002 when The California Division of Labor Standards Enforcement launched an investigation into whether Brinker International Inc., a Dallas-based restaurant operator whose brands include Chili's Grill & Bar and Maggiano's Little Italy, was complying with its rest and meal break obligations. In the end, Brinker paid $10 million to settle a lawsuit by the state agency.
Then a separate lawsuit seeking class-action status was filed on behalf of employees at Brinker's restaurants in California. The lawsuit claimed that Brinkers failed to provide rest and meal breaks as required under state law, and forced some employees to work off the clock during meal periods.
A lawyer for the hourly employees at Brinker, said they are pleased with the Supreme Court decision. "We feel that it is a very good result for California workers," said attorney Kimberly Kralowec.
As for the second meal:
The Supreme Court ruled that the duty to provide a second meal period arises only after 10 hours of work. This ruling meant that the Court rejected the plaintiffs' contention that a second meal period must be provided within five hours after the end of the first meal period (known as the "rolling five-hour" theory that plaintiffs had proposed).
The Court weighed in on rest rules:
Employers must authorize and permit employees to take a 10-minute rest period for each four-hour period in which they work any amount of time in excess of two hours, unless an employee's total daily work time is less than 31/2 hours. Further, although the "general rule" in a typical 8-hour shift is that "one rest break should fall on either side of the meal break," the sequencing of meal and rest breaks may be altered depending on factors such as shift length."
To summarize the lunch break lawsuit:
Employers must provide off-duty meal periods, but need not ensure they are taken.
What does this ruling mean to those people who have wage and hour lawsuits regarding meal breaks pending? Stay tuned: LawyersandSettlements will ask a wage and hour attorney experienced with the California labor code to weigh in.
CSU Faculty Vote to Strike under California Labor Law
In a news release issued May 2, the California Faculty Association (CFA) noted their members have been in negotiations with CSU for the past two years, without success. The talks were at an impasse, and while small delegations representing both sides in the California labor employment law dispute met last week in an attempt to find some small patches of common ground, members of the CFA voted in April to authorize rolling strikes.
Were strikes to force a delay in the start of classes at all 23 campuses of CSU this September, some 400,000 students would be affected. It is not known if such a disruption in the school year would result in a California labor lawsuit on the part of disgruntled students or their parents.
"We have said all along that we do not want to strike, but we will if that is what is necessary," said CFA president Lillian Taiz, a history professor at Cal State Los Angeles, in comments contained in the release.
Under California labor employment law, there are various steps governing the process. Were the delegations to be unsuccessful in finding any common ground, the next step would be to bring in a neutral third party??"referred to by some as a mediator. Here, the issues would be reviewed with the third party making recommendations to both sides for settling the dispute.
A rejection of third-party recommendations by both sides would trigger the expiry of the current contract. According to the release, CSU would have the power under California state labor laws to impose its contractual demands and concessions on the members of the bargaining unit??"and the CFA would have the right to strike.
While such actions would be legal under California employee labor law, a full strike by CFA faculty would have a severe impact on students either beginning their university studies or continuing in an existing program. Depending on the duration of a possible work stoppage, the delay in the commencement of classes could threaten the academic year and impact timelines and opportunities for starting a career.
With the CFA bargaining unit authorizing rolling strikes, the entire CSU system would not be affected all at once. However, in the event of a contract expiry and having the right to strike under California state labor laws, there would be nothing stopping the CFA from amending that position in an effort to put increased pressure on the CSU.
Were that to happen, would a California labor lawsuit (or series of lawsuits) by disgruntled students or parents be far behind? Stay tuned.
Sexual Harassment amongst Officers—California Labor Law Violation
In what seems like a "she sued, she sued" soap opera, Concord agreed to settle with its employee Wendy Schwartzenberger, a civilian community service officer, for $150,000, which will be paid from city funds. According to the lawsuit that was filed last year, Lt. Robin Heinemann made unwelcome sexual remarks and physical advances, including patting Schwartzenberger's behind, hugging and kissing her "at least 100 times."
In 2009, forty-six-year-old Heinemann, a 23-year department veteran and the highest-ranking woman in the Concord Police Department, filed a lawsuit against the city claiming that she was harassed and discriminated against because of her gender. Heinemann said she was the target of "trumped-up" internal-affairs investigations into whether she had been dishonest and disrespectful to superiors. According to the suit, male officers who were accused of wrongdoing went unpunished. Heinemann and her attorneys, Stan Casper and Toni Lisoni, settled with the city for $150,000.
It doesn't stop there. More than a decade ago, Heinemann and other female police officers cried sexual harassment within the department and settled for $1.25 million. Heinemann was promoted to lieutenant two years later.
According to The San Francisco Chronicle, last November, the city of Concord agreed to settle a sexual-harassment lawsuit for $750,000. Former police officer Lisa Capocci claimed that her bosses retaliated against her when she complained that a supervisor sent "I love you" messages to her on a police-cruiser computer.
In another totally separate lawsuit involving a probation officer, and this one in Alameda, a 30-year-old deputy probation officer accused Alameda County Chief Probation Officer David Muhammad of sexual harassment and assault in 2011, and that another employee filed a claim of harassment in 2009. The $1.5 million lawsuit, which has been filed against defendants Muhammad and Alameda County, claims the deputy probation officer suffered economic harm, mental distress and anguish.
According to Amy Blackstone, a sociologist at the University of Maine, as many as 70 percent of women and 45 percent of men have experienced some form of sexual harassment in the workplace.
Car Dealership's "RO System"—Violation of California Labor Law?
The dealership had this system in place when Percy was hired four years ago. He says it was a "new concept" and seemed to be OK at first. And he didn't have much choice??"in 2008, dealerships in California and nationwide were closing. Percy says about 500 mechanics found themselves unemployed when he was hired. "I was told to take it or leave it, so there was nothing I could do about it," he says.
"Everything was going well when we were busy; I was getting $32 an hour and worked 40 hours per week. But it went sideways when the economy slowed down, and to make it worse, we had a personnel change. Now I work 40 hours a week but get paid for about 18 hours."
Working as a mechanic under this RO system is like being paid for piece-work in the textile industry??"like getting a flat rate. Say a car comes into the shop (the dealership) for an oil change. The customer is told the job will take one hour but it takes the mechanic two hours. Or it may take the mechanic 30 minutes. Regardless, they will only get paid for one hour??"the time quoted by the service writer.
Needless to say, this system boosts profits for the owner, but it would seem to be a violation of the California labor code.
"We get weekly printouts, and if there are errors (and there usually are) that we don't catch, we don't get paid," says Percy. Let's go back to that oil change. Percy is supposed to get an hour's pay, but if the service writer inputs the repair order into the computer incorrectly and Percy doesn't catch the error, he is out of pocket.
"For instance, one hour has to be input as 1.0 hours," Percy explains, "but the service writer might type in '1.1' or '0' or he might even credit the work to another mechanic. The service writers are usually careless??"they aren't affected by their errors. So there is no incentive for them to be correct and some of them even treat this like a game, seeing if we can catch the error. This is so juvenile and this system is so frustrating…
"We have all talked to our employer but he just pleads ignorance and says this system is new and, as I said, we can 'take it or leave it.' Of course, we are taking it because the alternative is unemployment."
Percy adds that there are other problems that result from this system:
"A customer brought her car in and I worked on it," he explains. "Little did I know that she had made a deal with the service writer. She was quoted three hours of labor but she told the service writer that she was unemployed with a few kids and couldn't afford three hours of work. He felt sorry for her and only charged one hour; I was paid for one hour's work, meaning that I worked two hours for free. I was never consulted; the mechanics never have any say.
"As for breaks, with this flat rate system, do we take breaks on our own time, and is our employer supposed to pay us? Nobody seems to know, but if we are on the clock and take a break, we lose money.
"When I started working at this dealership, we were told there would be no overtime whatsoever, and if anyone works overtime, they will get written up. But we often work over eight hours off the clock because our manager insists. I believe that all these issues are California labor law violations."
The California labor law states that you must be paid for all time worked. An experienced wage and hour attorney can help Percy and others in similar situations.
Tragic Deaths of Two Brothers May Have Involved Violations of California Labor Law
The Los Angeles Times (3/22/12) reported that in excess of $165,000 in fines were levied against Community Recycling and Resource Recovery, located in the San Fernando Valley. A spokesperson for the State division of Occupational Safety and Health said in a statement that the deaths of the two young workers were "completely preventable."
This particular California and labor law story unfolded October 12 of last year, when Armando Ramirez was standing atop a ladder in a drainpipe when he was overcome while attempting to clear a blockage in the pipe. Armando's older brother Eladio came to the aid of Armando but was himself overcome by hydrogen sulfide, a common byproduct of the composting process.
Armando was pronounced dead at the scene, while Eladio died in the hospital two days later. The Division of Labor Standards Enforcement is reportedly looking into possible violations of California and labor law pertaining to child labor. Armando's work papers were reported to have claimed the deceased was 30 years of age, when in actual fact he was just 16. Eladio, his older brother, was 22 when he was removed from life support.
An investigation into the incident against a backdrop of California labor employment law may reveal that the younger Armando, at 16, may have been too young to perform the hazardous work that eventfully claimed his life.
A spokesperson for the facility noted that a thorough and aggressive investigation was launched into the incident, and that a thorough review of the company's safety and training protocols was undertaken.
Further investigation will ascertain if criminal charges are warranted in this California labor employment law matter.
It is not known if a California labor lawsuit has been launched on behalf of the two dead brothers.
California state labor laws exist to prevent a myriad of injustices that are often leveled at workers??"everything from fair pay and overtime, to working conditions, rest periods and meal breaks. Accidents will happen??"and such may have been the case here. Nonetheless, some employers flaunt the law for their own convenience and to their own advantage.
Workin' at the Car Wash Blues
The car wash industry in California appears to chronically violate California labor code. To that end, the California Department of Industrial Relations (DIR) announced violations against the statutes of California labor employment law on the part of three car wash operators in the state.
The DIR is a division of Labor Enforcement Standards, an entity that operates within the jurisdiction of the Labor Commissioner's Office. To that end, California Labor Commissioner Julie A. Su is on a quest to ensure every single employee in California is paid fairly, with proper meal breaks and rest periods.
In two recent cases, breaches have been found. Su and her department have been busy filing the odd California labor lawsuit as a result.
According to US State News (3/6/12), two separate lawsuits were brought in Los Angeles Superior Court against three car wash operations. The three were identified as Rosecrans King Car Wash, Wilshire Car Wash and Vermont Auto Spa. The DIR conducted investigations and found evidence of unpaid wages, as well as other violations.
Rosecrans King Car Wash was found to have systematically failed to pay workers all wages earned for all hours worked beginning in January 2009??"a violation of California prevailing wage law. The California labor lawsuit in that case seeks lost wages, as well as damages and other costs to the tune of $1,698,732, according to the report in US State News.
A subsequent complaint is filed against two other car wash operations. V5 Car Wash LLC, doing business as Vermont Auto Spa, succeeded the Wilshire Car Wash run by B.B.L Investment Corporation at the same California location. That lawsuit seeks $348,732 in minimum wages, overtime, and penalties for meal and rest period violations according to California employee labor law.
"Wage theft is a serious problem that harms workers and employers who follow the laws as well as the state economy," said DIR Director Christine Baker.
Labor Commissioner Su echoed those comments.
"Our investigations found that employers knowingly and willfully failed to properly record accurate time records for each worker and failed to provide them with itemized wage deduction statements with their pay," added Su. "By not providing an itemized statement, workers had no way to verify if the pay they received covered all hours worked. This routine practice by the employers is nothing less than an act of wage theft."
Despite what you see in the movies, many employees find themselves having a case of working at the car wash blues. Su and her various departments are bent on upholding California state labor laws, for the benefit of employees, and holding employers accountable.
Pregnancy Discrimination Will Result in California Labor Lawsuit
California scored top marks for having America's first paid leave program for parents of newborns and for providing disability payments for private sector employees with pregnancy- or childbirth-related disabilities, a flexible sick leave law and unpaid, job-protected leave for pregnancy-related disability. Additionally, state employees are eligible for up to 26 weeks of benefits for pregnancy-related disabilities and a year of unpaid parental leave.
And operated through the state disability system, in California, statewide family leave pays 55 percent of a worker's salary, up to $840 a week, for six weeks, for new parents - fathers also qualify, although 85 percent who use the leave pay are women.
Yet some employers in California are still violating the California labor code by punishing pregnant workers.
"The rise in pregnancy-related cases is part of a rise in motherhood cases," said law professor Joan Williams, at the University of California, adding that "Motherhood is a key trigger for gender discrimination." Even though Federal laws have changed in the past decade, making it easier to bring pregnancy discrimination cases to trial, those lawsuits brought by the EEOC have increased about threefold, from six or fewer per year in the 1990s to 16 or more per year since 2001, according to Equal Employment Opportunity Commission (EEOC) spokesman David Grinberg.
But the good news is that younger women know their rights, more so than women, say, 20 or 30 years ago. These days if employers attempt to penalize them for getting pregnant or having children, they call "sex discrimination" and are more likely to sue their employer.
In 2009, Darlene filed a lawsuit against her employer after he threatened to terminate her. "My boss told me that I could take as long as I wanted on my maternity leave because I wouldn't be needed back," says Darlene. "Of course I took mat leave and I told them that firing me was against the California labor code so I returned to work, but it was part time: they took away all of my duties except payroll."
Darlene's attorney has filed a discrimination claim against her employer. Even with countless pregnancy discrimination settlements nationwide, women are still illegally fired for having a baby. A recent incidence may be good news for Darlene.
In February 2012, a female employee was awarded $148,000 - including back pay, interest and damages - or being illegally fired by HCS Medical Staffing in Milwaukee - she got pregnant and went on maternity leave. In this case The US Equal Employment Opportunity Commission got involved and filed charges against the bookkeeper's employer after she was accused by the owner of "using pre-natal doctor appointments as an excuse to play hooky from work." Adding insult to injury, she was in the hospital recuperating after a Caesarean section when she was notified of her termination - by mail.
The California Fair Employment and Housing Act states that:
It explicitly prohibits employers from harassing, demoting, terminating, or otherwise discriminating against any employee for becoming pregnant, or for requesting or taking pregnancy leave. The Act applies to all employers that regularly employed five or more full-time employees in the preceding year.
The California Pregnancy Disability Leave Law ("PDLL") is part of the California Fair Employment and Housing Act, and requires employers who employ 5 or more employees to provide employees who are disabled by their pregnancy a reasonable period of leave, not to exceed four months. An employee who is disabled by her pregnancy and entitled to PDLL leave may take the leave all at once, or in increments. An employer is not required to pay wages to an employee taking PDLL leave, unless it has a policy of continuing the payment of wages for other types of temporary disability leaves.
However, the employer may require the pregnant employee to use, or the employee may elect to use, any accrued sick leave during the period of leave. For most purposes, employees who are on pregnancy disability leave must be treated the same as employees on other types of disability leave in terms of pay, benefits and other terms and conditions of employment. There is no length of service requirement, so even recently hired employees are eligible for this leave.
In addition, in California, once the employee has given birth, she may be entitled to an additional 12 weeks of leave "for the reason of the birth of a child" under the California Family Rights Act ("CFRA"), which is California's version of the FMLA. Entitlement to CFRA leave for birth of a child depends on, 1) whether the employer employs more than 50 employees within a seventy-five-mile radius; and 2) Whether the employee worked more than 1250 hours in the 12 months preceding the first day of the requested CFRA leave or any pregnancy disability leave; and 3) Whether the employee has more than one year of service with the employer.
For Those Who Violate California Labor Law, There's a New Sherriff in Town…
In attempting to gain an unfair competitive advantage (and to save costs), many employers stoop to unsavory practices all in the name of making a better buck. That includes paying workers less than minimum wage, denying workers overtime, misclassifying workers to avoid overtime costs, and non-provision of workers' compensation coverage and benefits. The foregoing is in violation of the California labor code.
Companies employing such tactics gain an unfair and undeserved advantage over their competitors when bidding for projects. Conversely, those employers who play by the rules are often shut out of lucrative contracts.
In either scenario, a California labor lawsuit is often the response.
"We are very excited to announce the creation of this unit, which will be tasked with leveling the playing field for California employers by raising the stakes for those who underpay, underbid and under-report in violation of the law," said California Labor Commissioner Julie A. Su in a statement late last month. "This is a vital tool in our efforts to step up enforcement to protect California workers and employers struggling to make an honest living."
The unit, which will be comprised of peace officers reporting directly to the Labor Commissioner, will work under the auspices of the Department of Industrial Relations' Division of Labor Standards Enforcement (DLSE), and will investigate and pursue any and all violations and allegations of fraud against the required guidelines of conduct set forth in California labor employment law.
A news release from the state February 27 noted the unit will be watching for labor theft, lost wages through bounced paychecks or accounts with chronically insufficient funds, and kickbacks on public labor projects. The CIU will also have in its sights unlicensed farm contractors and similar conduct in the garment industry, together with violations involving minors on the job. All flies in the face of California and labor law.
"As a law enforcement agency, we will use all tools available to us to bring about compliance," Su said in a statement. "The Labor Code's criminal provisions acknowledge that wage theft is a threat not just to those most directly affected, but to public safety and the health of our economy."
While the unit will bolster compliance with California employee labor law, it is not known if the unit's activities will stem the flow of lawsuits or increase their number. Many violations go undetected, given that workers are often reluctant to come forward to complain, afraid for their jobs and their respective livelihoods. An increase in the rate of exposed employers in non-compliance could very well increase the likelihood of a California labor lawsuit.
California Labor Law Case Settled for $316,000
The release noted that the claims were filed against the Pho Clement and Pho Clement 2 restaurants in San Francisco. The Department of Industrial Relations' (DIR) Division of Labor Standards Enforcement, also known as the Labor Commissioner's Office, helped the parties come to an agreement following an investigation that started in June 2011.
"Regardless of the industry, employees should never feel like they have to fight to receive the full wages they are owed. In this instance, employees successfully stood up for wages taken by their employer that they were owed," Christine Baker, the director of DIR, said in a statement.
The release noted that the settlement that was reached requires that the employers pay each of the eight employees an amount that ranges from $17,432 to $85,114, depending on the amount of unpaid overtime wages that they were owed.
"While we are grateful that this process has come to an amicable conclusion, refusal to pay workers for all hours worked has no place in California. Overtime laws are on the books for a reason and the state will protect both employees and the honest employers who play by the rules," said Su.
The release noted that the collaborative effort between workers, legal and community advocates, and the state helped the employees receive the settlement that they deserved.
"The Asian Law Caucus, Chinese Progressive Association and the Progressive Workers Alliance assisted us in conducting the thorough investigation that led to our ability to get the wages owed into workers' pockets," said the labor commissioner.
According to the DIR website, the California Department of Industrial Relations' Division of Occupational Safety and Health (Cal/OSHA) also recently issued 28 citations with penalties that added up to $540,890 following its investigation of a recent explosion in Sylmar that injured three people, two of them critically.
Cutting Costs Cuts into California Labor Law Violations
When it was time to go back to work, HR told Bob that his position was filled and there were no openings. "I asked the HR woman what that meant - did it mean I was fired?" says Bob. "She said, 'I didn't say that.' Well, what else could that mean? Apparently, I would find out at a meeting.
"The manager of HR, the HR woman who called me and my director were at the meeting. They more or less repeated what I had been told on the phone. They also said that I was a valuable employee but there were no job openings. I was shocked, to say the least."
In other words, Bob was in limbo. He was still an employee but had no job, no hours, no benefits. HR suggested he check the hospital's job website frequently to see if there is any other work he would be interested in. Maybe nursing, an administrative position, cook or housekeeping? Every job posted, at minimum, required one year experience. So after 36 years of being a respiratory therapist, Bob didn't even qualify for a housekeeping job.
"Two weeks ago, they said maybe in three or four months when business picks up there could be an opening in my department and my boss will call me," says Bob, "but I am not holding my breath waiting.
"I found out from my co-workers that two per diem employees were given two part-time positions to fill my job. According to people in the department, they didn't need to fill my position because business was so slow they were sending people home. I am the second-highest paid person in the department; now two people are doing the work of one person for the same amount of money. And so many younger employees will work for less money.
"So I believe I was wrongfully terminated to save costs, and they don't have to pay these two people benefits. I don't know the legal ramifications of this but some people have said that, because I was not fired, they don't have to pay anything into unemployment and I cannot apply for unemployment benefits because technically I am still an employee.
"I have almost drained my checking account and my savings so I don't know what I am going to do. From the divorce I have a big mortgage and if I lose that…well if I do lose it, I owe more than my house is worth. That means I cannot refinance my house and my ex-wife is still on the deed. And I imagine my age is a problem. I would be willing to take less salary but I have to cover that mortgage. I am in a bad situation."
Bob says he has looked for a position elsewhere but jobs are scarce right now. To make matters worse, some of the hospitals require a higher license, which is more involved than the license Bob got 36 years ago. There are two levels of respiratory therapist: certified and registered. Bob is the former. Some hospitals allow the registered therapist to do more procedures than a certified therapist can do. Although Bob has done all procedures in his 36 years of experience, some departments insist on having an entire registered staff.
"I am very despondent about this, I just don't know what I can do," says Bob. "At minimum, I want to file a wrongful termination suit and get my job back. My ideal situation would be getting my job back and job security. But I know there is retaliation.
"I still have my pension and if I have social security, I will be OK financially. But I have given half my life to this place and for them to put me in limbo is so unfair. I think they were hoping I would get mad and quit or do something and get fired."
Bob says he won't play that game; he wants the hospital administrators to know the California labor law violations cannot be tolerated.
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