• Employers Do NOT Need to Force Employees to Take Breaks

    For the first time, a California appellate court has held that employers do not need to force their employees to take meal breaks.  While several federal cases have found that employers do not need to force employees to take meal breaks, the only California appellate court decision on the matter found that employers needed to ensure employees took the meal break.  This sometimes proved difficult when an employee simply refused to take the meal break.

    Reconsidering the matter following a transfer from the California Supreme Court, and after vacating their original decision, the Fourth Appellate District in Brinker Restaurant Corp. v. Super. Ct., held:

    1. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;
    2. Employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
    3. Employers are not required to provide a meal period for every five consecutive hours worked;
    4. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and
    5. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.

    The decision as it relates to rest breaks is no big surprise considering the language regarding mandatory rest breaks is considerably different than the language regarding meal breaks.  The appellate courts  interpretation provides a significant boon for employers that provide meal breaks even when the employees refuse to take them.

    There are still plenty of ways an employee could claim s/he was dissuaded from taking a required break.  Smart employers will ensure their handbooks and general policies clearly provide for and even encourage the use of all rest and meal breaks.  Additionally, employers should be careful about scheduling employee work-times so tightly that the employees essentially cannot take a break.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Federal Minimum Wage Increase

    Effective July 24, 2008, the federal minimum wage for covered non-exempt employees will rise from $5.85 to $6.55 per hour.  The Fair Minimum Wage Act of 2007, which amended the Fair Labor Standards Act (FLSA), provides for phased-in increases ultimately reaching $7.25 per hour effective July 24, 2009.  A separate provision of the bill brings about phased increases to the minimum wage in American Samoa and the Commonwealth of the Northern Mariana Islands.

    Many states, like California, have their own minimum wage that is higher than the federal minimum wage.  California’s minimum wage is currently $8.00 per hour.  Additionally, many counties, cities, or local governments have their own prevailing wage laws.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Arbitrator Not Allowed To Determine Validity of Arbitration Agreement

    Another California Appellate Court recently held that the court, not the arbitrator, can determine whether an arbitration clause in an employment agreement is valid. Because California courts have frequently refused to enforce arbitration agreements in the employment context, many employers have started inserting provisions that require the arbitrator, not the court, to determine the validity of the arbitration agreement.

    In Murphy v. Check ‘n Go of California, Inc. (2007) 156 Cal.App.4th 138, the court refused to uphold a similar provision, finding that “While the language of the agreement [regarding arbitration of unconscionability issues] could not be clearer, plaintiff’s alleged assent to this provision was vitiated by the fact that it was set forth in a contract of adhesion, i.e., a standardized contract drafted by the stronger party and presented to the weaker party on a take it or leave it basis [citation].” Now, a second appellate court came to the same conclusion. See Ontiveros v. DHL Express 08 C.D.O.S. 8379.

    The decision is not all that surprising, as arbitration agreements have taken a tough beating in the last decade. Under current laws many, if not most, arbitration agreements between employees and employers in California are unenforceable. Those that are enforceable usually require the employer to pay for the cost of arbitration. In many cases the costs of arbitration are greater than the amount the plaintiff would have been awarded in court.

    I know many employers desire arbitration agreements, but I don’t know that arbitration is necessarily a wise decision. There used to be two main benefits to arbitration: 1) Arbitration was considered less costly and less time-consuming and 2) Employers could avoid a runaway jury.

    Recent court decisions have eradicated the first benefit by requiring employers to pay for almost 100% of the arbitration costs and allowing virtually full discovery in the arbitration proceedings. Now, instead of allowing a judge or jury to decide the case for free or for nominal jury fees, the employer must pay an arbitrator between $450 to $750 per hour or more to review the case, rule on any applicable motions and decide the merits of the case. Our office handled one particularly contentious arbitration where the client paid over $200,000.00 in arbitrator fees alone.

    As to the other main benefit (avoiding the runaway jury), I’m not convinced this is sufficient justification to throw money at an arbitrator. Some assume that a jury tends to award more to a plaintiff than an arbitrator, but I have not seen any statistics supporting this assumption. Even if it is true, keep in mind that only 1% of the cases that are filed in court go all the way to trial. This statistic is essentially the same in arbitration. That means you are paying an arbitrator’s fees to avoid the 1% of cases that go to trial. Also keep in mind that, at least in many counties, more than half the cases that go to trial result in a defense verdict. So, really, the employer is paying the arbitrator’s fees in 100% of cases to avoid less than one-half of 1% of the cases that might possibly result in a runaway jury verdict.

    There are several other justifications for arbitration, but I can’t say I am convinced by any of them. Some argue that arbitrators are more likely to rule in favor of the employer because the employer is more likely to appear before that arbitrator in the future. Having spoken with numerous arbitrators and people that conduct arbitration on a frequent basis I have never heard of an instance where the “repeat-player” effect had any impact on a case. Because many lawyers still hold to this belief, or for some reason do not want to litigate in arbitration, some lawyers may avoid cases with enforceable arbitration agreements. Therefore, having an enforceable arbitration agreement may help decrease the number of lawsuits that actually get filed against the company. This is just an assumption and it’s not likely we could ever really find out how many cases were NOT filed as a result of an arbitration clause.

    Drafting an enforceable arbitration agreement is possible, but be careful what you wish for. Keep in mind that in order to be enforceable with respect to most of the claims an employee might bring, the employer will have to pay for the arbitration fees and afford the employee the same protections the employee would have in court. Employers should carefully considering the consequences before using arbitration agreements.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Happy 4th of July – Declaration of Independence

    Declaration of Independence - United States of America

    (Adopted by Congress on July 4, 1776)

    The Unanimous Declaration
    of the Thirteen United States of America

    When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. –Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

    He has refused his assent to laws, the most wholesome and necessary for the public good.

    He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

    He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

    He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

    He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

    He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

    He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

    He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

    He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

    He has kept among us, in times of peace, standing armies without the consent of our legislature.

    He has affected to render the military independent of and superior to civil power.

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

    For quartering large bodies of armed troops among us:

    For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

    For cutting off our trade with all parts of the world:

    For imposing taxes on us without our consent:

    For depriving us in many cases, of the benefits of trial by jury:

    For transporting us beyond seas to be tried for pretended offenses:

    Osha FirewordsFor abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.

    For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.

    For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

    He has abdicated government here, by declaring us out of his protection and waging war against us.

    He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

    He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

    He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

    He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

    In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

    Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

    We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

    New Hampshire: Josiah Bartlett, William Whipple, Matthew Thornton

    Massachusetts: John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry

    Rhode Island: Stephen Hopkins, William Ellery

    Connecticut: Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

    New York: William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

    New Jersey: Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

    Pennsylvania: Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

    Delaware: Caesar Rodney, George Read, Thomas McKean

    Maryland: Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

    Virginia: George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

    North Carolina: William Hooper, Joseph Hewes, John Penn

    South Carolina: Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

    Georgia: Button Gwinnett, Lyman Hall, George Walton

    Source: The Pennsylvania Packet, July 8, 1776

  • Can Employers Recover “Training Costs” From Employees?

    In a recent decision by the First Appellate District in California, a court of appeals concluded that the City of Oakland could require an employee to repay training costs the employer incurred in training the employee. When Ken Hassey was hired by the Oakland Police Department, he signed a “conditional offer” that required Hassey to repay $8,000.00 in training costs if he failed to work for the Police Department for 5 years. Additionally, the Memorandum of Understanding negotiated by Hassey’s union allowed the City of Oakland to withhold any training costs from Hassey’s final paycheck. Partway through his initial training Hassey was encouraged to resign from the police department. Hassey signed a Training Cost Repayment Plan agreeing to repay the training costs. Despite the fact that the Training Cost Repayment Plan did not authorize the City to deduct the training costs from Hassey’s final paycheck, the City of Oakland withheld a portion of Hassey’s final paycheck and applied it to the debt.

    When Hassey failed to make the required payments, the City of Oakland sued Hassey for the remaining balance. Hassey filed a cross-complaint alleging, among other things, that the repayment obligation was unlawful, that the City unlawfully withheld Hassey’s final paycheck and that the repayment obligation was an unenforceable covenant not to compete.

    Analyzing the case under federal and California law, the appellate court concluded that the reimbursement agreement was valid. Relying on a Wisconsin case with similar facts, the court concluded that, “Oakland was permitted to seek reimbursement from police officers who gained the benefit of its training program at the Oakland Police Academy but did not stay with the police department long enough for Oakland to benefit from that training.”

    The court also held, however, that the City of Oakland could not withhold Hassey’s final wages. California courts have long held that “an employer is not entitled to a setoff of debts owing it by an employee against any wages due that employee.” In particular, employers need to ensure that employees always receive at least minimum wage and any required overtime payments.

    Finally, the court held that the repayment obligation was not an unlawful covenant not to compete. Although California has a strong public policy against covenants not to compete, nothing in the repayment obligation limited Hassey’s right to seek employment elsewhere. Although not specifically stated, the fact that Hassey had to repay the training costs regardless of whether he accepted another job that utilized Hassey’s training likely made it easier for the court to decide that Business and Professions Code Section 16600 was not implicated in the case.

    Employers should be careful before deciding they can require employees to repay training costs and they should never take money from an employee’s paycheck without specific written authorization from the employee for that specific deduction. Even if the employee authorizes the deduction, the employer should ensure the employee receives at least minimum wages.

    You can download an audio version of this article here: California Employment Lawyer Netcast for July 1, 2008.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.