The Law at Work

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The Law at Work

Keeping both employers and employees in touch with California labor and employment law.

Wednesday, March 25, 2015



Brett T. Abbott

Posted byBrett Abbottat1:39 PM Sunday, December 16, 2012 Round and Round We Go: Rounding Policies in California

A California court recently held that employers may lawfully use roundingpolicies, i.e. policies that round an employee's time worked to the nearesttenth of an hour worked (or other similar increment) for purposes ofcalculating pay.

In the caseof Silva v. See's Candy, See's employees were required to use atimekeeping system to record their start and end times of work. See'sincorporated a rounding policy in which times would be rounded to the nearesttenth of an hour (up or down) for payroll purposes. A former See'semployee filed a lawsuit claiming the rounding policy resulted in underpaymentof wages.

The court held that "the rule in California is that an employer isentitled to use the nearest-tenth rounding policy if the rounding policy isfair and neutral on its face and it is used in such a manner that it will notresult, over a period of time, in failure to compensate the employees properly forall the time they have actually worked." Thus, the legality of arounding policy depends on (1) whether it operates over time to pay employeesfor all time worked and (2) whether it does not to short employees. Inthe See's case, there was an experts report filed with the court thatconcluded that the Sees rounding policy actually had a net effect of slightly overpaying employees.

The Sees case is the first published Californiadecision to uphold the use of rounding policies. However, not all rounding policies would befound legal in the eyes of the law. Thekey requirement is that the policy, over time, properly compensates employeesfor hours worked and that it does not result in underpayment. Absent these requirements, a rounding policycan create substantial liability for employers.
Posted byBrett Abbottat10:30 AM Wednesday, October 10, 2012 Social media and privacy rights

Virtually everyone yes,probably even your parents is on Facebook.Facebooks hundreds of millions of users share untold photos, stories,random thoughts and personal information all day, every day. And unlike a phone call or in-personconversation, Facebook, and other social media sites, keeps a permanent recordof every users online life. As such,social media can create new and unique challenges for employees and employersalike.
Potential employees may have online identities employers consider usefulwhen choosing whether to hire a job applicant.However, privacy settings on many social media sites allow an applicantto hide his/her online information from potential employers. As a result, a newtrend in applicant background investigation has emerged: asking an applicantfor his/her username and password to social media sites during the interviewprocess.

In light of this trend, some states have draftedlegislation seeking to outlaw what some consider an invasion of a jobapplicants privacy. Lawmakers in California, as well Illinois and Maryland,have proposed legislation that would prohibit employers from requiring thatcurrent or prospective employees provide or disclose any user names, passwords,or other ways of accessing personal online accounts. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation,as is the United States Senate.

Social media isnt going anywhere. Ifanything, Facebook, Twitter and others are becoming ever more entrenched invirtually every aspect of online life.Similarly, employers are not going to stop screening and investigatingjob applicants, and social media can often give employers an unfiltered glimpseas to who an applicant really is. So forthe time being, employers are free to mine social media sites for informationon potential applicants, but Californialaw has made it very clear that employers cannot demand that applicants oremployees hand over user names and passwords.
Posted byBrett Abbottat9:25 AM Thursday, August 2, 2012 Preserving the at-will relationship

California is an at-will employment state. A landmark California case put it thusly: Anemployment, having no specified term, may be terminated at the will of eitherparty on notice to the other." Dore v Arnold Worldwide, Inc. (2006) 39C4th 384, 391, 46 CR3d 668. It is in every employers best interest tokeep the at-will relationship intact. Failureto do so can create situations where the employment relationship may be only beterminated upon a showing of good cause.There are several ways in which the at-will status of an employee can bemodified. This article will explore someof these.
Certain employer communicationsor actions can give rise to an enforceable expectation by the employee that heor she may only be terminated for good cause.Some examples include verbal assurances of job security, regularpromotions, salary increases, and bonuses. Some creative employee-rights attorneys will evenuse birthday cards with innocuous statements from supervisors like Keep upthe good work! or What would we do without you? as evidence that anemployee expected that termination could only be for good cause.
However, oral assurances, orregular promotions and salary increases, do not automatically establish animplied contract, i.e. that termination can only be for good cause. Severalcourts have concluded that without more, "promotions and salary increasesare natural occurrences of an employee who remains with an employer for asubstantial length of time... and should not change the status of an 'at-will'employee to one dischargeable only for just cause." Miller v Pepsi-ColaBottling Co. (1989) 210 CA3d 1554, 1559.
Courts will often considerother documents prepared by the employer to determine the existence of animplied contract to terminate only for cause.These writings include employment applications, letters, stock optionagreements, bylaws, and other writings bearing on the employment relationship.
Yet the safest bet is toinclude express language in an employee handbook which makes the at-willrelationship explicit, and states that such relationship can only be modifiedin writing by the president/owner of the company. Its also imperative to have the employeesign-off on his or her copy of the employee handbook, showing that he or shehas read, understands, and agrees to be bound by the at-will relationship. Posted byBrett Abbottat10:24 AM Friday, July 6, 2012 Its vacation time!

Summer time is vacationtime. Like many employers, you probablyoffer some sort of vacation benefits to your employees. While such benefits are universallyappreciated by employees, employers can run into trouble if the rules regardingvacation pay are not properly followed.This article will explore the ins and outs of vacation pay in California.
Vacation pay is a formof wages
There is no requirement thatemployers provide vacation pay, but if this benefit is offered, it must complywith numerous rules. Vacation pay is contract between the employee and theemployer; it is a form of wages.Employers can set the amount of vacation that an employee earns. However, employers must be clear about howmuch vacation is offered, how it accrues, and when it starts to accrue. It is legal to require that a certain periodof time pass before an employee starts to accrue vacation.
Because vacation is a form ofwages, the right to vacation accrues on a daily basis. Employers are free to require that employeestake vacation only when they have already accrued or earned it.
Avoid use-it-or-lose itvacation policies
Once an employee has earnedvacation, an employer cannot take it away.Californialaw strictly prohibits Use-It-Or-Lose-It vacation policies, i.e. where an employee loses accrued vacation thathas not been used by a specific time.However, as shown below, reasonable caps on vacation and cash-outpolicies are allowed.
A reasonable cap onvacation is legal
Employers can establish areasonable cap plan, meaning that once a certain level of accrued vacation isearned but not taken by the employee, no new vacation will accrue until some ofthe accrued vacation is taken. Once somevacation is taken by employee, vacation must continue to accrue again at theregular rate.
The cap on vacation must bereasonable. The most common caps used byemployers are one-and-one-half or two times the annual accrual rate. For example, if an employee earns 40 hours ofvacation per year, a reasonable cap would be 60 hours or 80.
Cash-out policies arealso legal
Employers are also free tooffer employees the option to cash-out their accrued vacation benefits. Cash-out policies can be on an as neededbasis or allowed only once a month or once a year. Many employers require employees to acceptpay at the end of each year for vacation time that employees accrued but did nottake.

Vacation must be paidat termination
Because accrued vacation is aform of wages, an employer must pay out all accrued, unused vacation at thetermination of the employment relationship.This pay-out must be at the employees final rate of pay, regardless ofthe rate of pay at which the vacation time was earned.Posted byBrett Abbottat9:23 AM Thursday, June 7, 2012 Working in a post-Brinker world

One ofthe most widely-followed labor and employment cases of the last decade finallyreached a conclusion a few weeks ago. Inthe case of Brinker RestaurantCorporation v. Superior Court of San Diego, the California Supreme Courthanded down a landmark decision concerning meal and rest breaks. Below is a summary of the key points from theBrinker decision.
Rest PeriodsThe Court held that employees are entitled to 10minutes of rest for shifts from three and one-half to six hours in length, 20minutes of rest for shifts of more than six hours up to 10 hours, and 30minutes for shifts of more than 10 to 14 hours. Regarding the timing of the rest breaks, the Courtrejected the suggestion that employers have a legal duty under to permittheir employees a rest period before any meal period. Instead, the Courtfound that employers are subject to a duty to make a good faith effort toauthorize and permit rest breaks in the middle of each work period, but maydeviate from that preferred course where practical considerations make itinfeasible.
Meal PeriodsRegardingthe timing of meal breaks, the Court looked to the language of Labor Codesection 512(a), holding that, absent a waiver by the employee, employees areentitled to a first meal period no later than the end of an employees fifthhour of work and a second meal period no later than the end of an employees10th hour of work.
There is NO requirement that an employerensure work is not being performedThe plaintiff in the Brinker case argued that employers were required to ensure thatwork ceases for the 30 minute meal period. The Court did not agree.Using Wage Order No. 5 and Labor Code section 512(a) as a guide, the Court heldthat an employer must relieve the employee of work, but need not ensure thatthe employee does no work. The Court used the following analysis: Anemployers duty with respect to meal breaksis an obligation to provide a mealperiod to its employees. The employer satisfies this obligation if it relievesits employees of all duty, relinquishes control over their activities andpermits them a reasonable opportunity to take an uninterrupted 30-minute break,and does not impede or discourage them from doing so. What will suffice mayvary from industry to industryOnthe other hand, the employer is not obligated to police meal breaks and ensureno work thereafter is performed[R]elief from duty and the relinquishing ofcontrol satisfies the employers obligations, and work by a relieved employeeduring a meal break does notplace the employer in violation of itsobligations
Employers have waited years for this decision. The Brinkercase provides much-needed clarification on an issue relevant to virtually allemployers in California. Employers state-wide can now breathe a smallsigh of relief, knowing that they are not required to police meal breaks. Instead, employers must (1) relieve employeesof their duties, (2) relinquish control over employees activities, (3) permitemployees a reasonable opportunity to take an uninterrupted 30-minute break,and (4) not discourage employees from doing so.Posted byBrett Abbottat9:22 AM Tuesday, April 10, 2012 Will being unemployed soon be a protected class?

California, as well as the nation as a whole, in is the midst ofvery trying times. Unemployment is high;qualified and experienced men and women everywhere are finding it hard to findwork. Some have been out of theworkforce for so long, they are finding it difficult to get back in.
State and federal legislatorsare taking action to combat this problem.There is a movement by both Californiaand the federal government to make being unemployed a new protected class. And with a higher-than-normal percentage ofpotential voters out of work, politicians seeking re-election this year willsurely attempt drum up support for this proposed legislation.
In California, legislation has been introducedto protect unemployed workers, and thus prohibit an employer from using apersons unemployed status at the time of applying for a job as a negativecriteria in the hiring process. Thisbill, AB 1450, was introduced a few months ago in January. Similar to the California bill, Congress has introduced HR2501 in the House and S 1471; these two bills would provide similar protectionsto workers on a nationwide level.
Currently, most protectedstatus complaints and lawsuits deal with harassment and termination of theemployment relationship; lawsuits based on failure to hire are generallyrare. Yet if either of these bills arepassed, employers can expect an uptick in litigation by unemployed applicantswho apply for positions and are not hired, especially if those applicantsappear to be otherwise qualified.Employers would be wise to consider altering their hiring practices, andprovide some additional training to those making the decision to hire newemployees in order to avoid problems down the road. And while these proposed bills are not yetthe law, given the state of Californiaand the countrys economic woes, and the fact that this is an election year,employers could very soon have another thing to worry about. Posted byBrett Abbottat2:00 PM Older PostsHomeSubscribe to:Posts (Atom)
BRETT T. ABBOTT, ESQ.
Gubler Abbott LLP
1110 N. Chinowth St.
Visalia, CA 93291
(559) 625-9600

Email: bta@thecalifornialawyers.com

Website: www.thecalifornialawyers.com

Mr. Abbott earned his undergraduate degree from Brigham Young University and attended Western State University College of Law, graduating as Valedictorian with Summa Cum Laude honors.

Mr. Abbott is a member of the California State Bar. Prior to joining Gubler Abbott LLP, Mr. Abbott practiced in one of the largest employment law firms in California. Mr. Abbott has represented clients in both state and federal courts, as well as before the Dept. of Labor Standards Enforcement, Employment Development Dept., and the California Unemployment Insurance Appeals Board. He is well versed in all aspects of employment law, including the Family Leave Medical Act (FMLA), the Americans with Disabilities Act (ADA), the Equal Employment Opportunities Commission (EEOC), the Fair Employment and Housing (FEHA), Industrial Wage Orders, and COBRA.

He has written articles on employment issues that have been published in the Orange County Register Newspaper. Mr. Abbott has also served as an editor for the Orange County Lawyer Magazine. Currently, his column "The Law at Work" can be read each month in the Visalia Chamber of Commerce Newsletter.

Before entering the legal field, Mr. Abbott served a mission in Central America. He is the proud father of three sons.

His areas of practice include employment law and civil litigation.

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