• Brinkley, not Brinker – Another Meal Break Case

    Another appellate court decision was issued today regarding whether an employer is obligated to ensure employees take required meal and rest breaks.  In Brinkley v. Public Storage, Inc. (B20513), the Second Appellate District rejected the employee’s argument that employers must force employees to take meal and rest breaks.  The court adopted the arguments previously set forth by several federal court cases as well as the now-famous Brinker case.  The Supreme Court recently granted review of the Brinker case, which left many employers wondering what they should do.  For now, at least, employers may be able to breath easy once again.

    Public Storage took some well-advised steps that helped them defeat the employee’s claims.  The employee handbook specified that employees were required to take rest and meal breaks.  The company held a district meeting wherein it informed employees that they were required to take breaks and reprimanded employees who did not take required breaks.

    Employers can still be held liable if they create a work environment that discourages or makes it difficult for employees to take meal or rest breaks.  See, e.g., Cicairosv. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949.

    The court also rejected the employee’s claim that an inadvertent error on the paystub subjected the employer to penalties under Labor Code Section 226.  The employer avoided penalties because (1) the error was inadvertent and corrected when discovered; and (2) the employee did not suffer any injuries.  The court noted that the defendant met its burden of production by filing a declaration stating that the misstatement was inadvertent and, when discoveered, corrected.  The burden then shifted to the employee to produce evidence that the conduct was “knowing or intentional.”

    A copy of the Brinkley case can be downloaded here.

    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.

  • Options After the DFEH Closes Your Case

    EG asks:

    If I’m not satifsied with the outcome of my DFEH complaint what is the next step?

    If the DFEH makes a determination that they have not been able to find sufficient evidence that the employer violated the law, the DFEH will close the file and issue a Right to Sue Notice.  The Right to Sue Notice allows the employee to file a lawsuit in court.  The employee has one year to file the lawsuit in most cases. Failure to file the lawsuit within the applicable time frame will bar the employee from pursuing the claim in court.  There may be additional claims that have different statutes of limitations.

    Proceeding with a lawsuit in court should only be done after careful consideration and is best done with the assistance of an attorney.  While an individual can represent himself/herself without an attorney, I do not recommend filing a court case without an attorney competent to handle the case. I know of more than one meritorious case that has been lost because an employee decided to forego hiring an attorney.  If you cannot locate an attorney willing to handle your case, that may be an indication regarding the likelihood of being able to prevail in a court of law.

    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.

  • California Computer Exemption Modified – Again

    On September 30, 2008, Governor Schwarzenegger signed AB 10 which modifies Labor Code Section 515.5 – the statute that exempts computer software field employees from the overtime requirements of California law.  Last year the “Governator” signed SB 929 which reduced the hourly rate computer workers must earn in order to be exempt from the overtime regulations of California law from $49.77 per hour to $36.00 per hour.  Prior to passing AB 10, employers could pay computer software workers $36.00 per hour or the salary equivalent: $74,880.00. The new law, which is effective immediately, requires employers to either pay the $36.00 per hour rate or a salary of $75,000.00 per year, in no less than monthly payments of $6,250.00 per month.

    I’m not sure why the Governor would sign a bill that requires employers to pay computer software workers $220.00 more per year than previously required.  As with the hourly rate, the Labor Commissioner will continue to increase the minimum salary for computer workers each year based on the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

    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.

  • October is National Disability Employment Awareness Month

    I didn’t come up with the title … Congress did.  In 1945 Congress enacted a new law declaring the first week in October “National Employ the Physically Handicapped Week” to educate the American public about issues related to disability and employment.  In 1962, the work “physically” was removed to acknowledge the employment needs and contributions of individuals with all types of disabilities.  In 1988, Congress expanded the week to be a montha dn changed the name to National Disability Employment Awareness Month.”

    Under the Americans with Disabilities Act and the Fair Employment and Housing Act, employers are required to provide reasonable accommodations to individuals with disabilities unless the accommodation would create an undue hardship.  If an employer knows, or should know, that an employee requires an accommodation, the employer must engage in an interactive process of determining what, if any, reasonable accommodation will enable the employee to perform the essential functions of the job.  Failing to engage in the interactive process can subject the employer to liability.  Conversely, if the employee fails to to engage in the interactive process the employee may destroy an otherwise viable discrimination claim.

    Accommodating employees or obtaining an accommodation from an employer is sometimes not an easy task.  Each party bears responsibility and the process works best when the employer and the employee work together.  Because this is an area of increasing litigation, both parties should educate themselves regarding their rights and responsbilities.

    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.