• Brinker is Published!

    The long awaited decision in Brinker v. Superior Court is out.  You can download it here.  The Court also issued the following press release:

    California Supreme Court Rules on
    Employer Meal and Rest Break Obligations
     
    Court Decides Employers Must Relieve
    Employees of All Duty During Meal Periods
    But Need Not Ensure They Perform No Work

    San Francisco—Resolving uncertainty over the scope of an employer’s obligations to afford hourly employees meal and rest periods, the California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.

    On the related question concerning when meal periods must be provided, the court concluded a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.

    These questions arose in Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state.  After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated.  The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.

    In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods.  Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases.  Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

    On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length.  Rest periods need not be timed to fall specifically before or after any meal period.

    As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment.  With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment.  With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims.  Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.

    The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.

    Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand.  The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.

    The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Web site in two formats:  Word (http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC ) and Acrobat (http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF. Hard copies of the opinion are available in the Supreme Court’s Clerk’s Office, 350 McAllister Street, San Francisco.  Legal briefs filed in the case are online at http://www.courts.ca.gov/15713.htm.

    I am sure the blogosphere will be full of commentary and analysis.  I know of at least 5 different organizations (including an upcoming presentation by the Labor & Employment Law Section of the Santa Clara County Bar Association) scheduled for ensuing weeks regarding Brinker and the impact it will have on employers and wage and hour litigation.  I, for one, am even more interested in finding out what the court does with Kirby v. Immoos Fire Protection where a lower court held the employee could be responsible for the employer’s attorneys’ fees in a failed meal break claim.  (See my earlier post re: Kirby)

    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.

  • 3 Things That Can’t Wait Until Next Year

    Well, the California legislature is at it again. Governor Brown signed several laws that change how employers do business in California. Most of the new laws are effective January 1st and require immediate action, so don’t put this off!

    1. Update Your Handbook

    You must now add “gender expression” and “genetic information” to the list of protected characteristics in your EEO and Anti-Harassment policies.

    You must now maintain an employee’s health insurance benefits at the same level of benefit during an employee’s Pregnancy Disability Leave.  Handbooks must be modified to reflect the new requirement.

    2. Revise or Create Offer Letters & Commission Agreements

    All employers must now provide the terms of employment in writing prior to commencing work.  In addition to standard information regarding pay rates, the offer letter must specify overtime rates, the regular paydays, and the contact information for the company’s Workers’ Compensation Carrier.  You will also need to provide written notice when any of the designated items changes.

    12/29/11 UPDATE

    The Labor Commissioner has drafted a template employers should use to comply with new Labor Code Section 2810.5(a).  You can download the template here.

    Beginning January 1, 2013, all employees paid on a commission basis must receive written copies of the commission plan specifying “the method by which commissions shall be computed and paid.” Given the complexity of many commission plans, do not wait until the end of 2012 to contact your employment counsel to review the plan and ensure your bases are covered.

    3. Rethink Your Hiring Practices

    The penalties for willfully misclassifying employees as independent contractors just went up.  This is an extremely high-risk area; so consult with knowledgeable counsel about your workforce status.

    Stop conducting financial background checks on applicants or employees until you speak with knowledgeable counsel regarding revisions to California’s privacy laws.  A new law limits which employers can conduct financial background checks and which employees can be the subject of such background checks.

    There are many more laws coming into effect in 2012. If you would like to receive a more detailed review of the changes, please send us an email at update@griegolaw.com with the subject line: “Send me the update.”

    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.

  • Inexpensive Sexual Harassment Training By The DFEH?

    The DFEH has been conducting no-cost sexual harassment prevention for state employers for the past year. It has now decided to offer the same training to private employers, purportedly at a low cost. The DFEH hasn’t specified what it means by “low-cost,” but it did indicate that the training will be available online.

    You can visit the DFEH’s website for more information. The press release should be available online in the next couple of days.

    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.

  • Another Radio Show Regarding AB 889

    It looks like I will be joining Patt Morrison at Southern California Public Radio (an NPR affiliate in Los Angeles) to talk about the Domestic Workers Bill of Rights.  They are at 89.3 on your FM dial in So Cal.  You can also listen online at http://www.scpr.org.

    The show segment will be live today from 2:00 to 2:30.  Hope you can tune in.

    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.

  • Follow Up on Current Version of AB 889 – Domestic Workers Bill of Rights

    I hope you were able to listen to the discussion this morning on KQED regarding the Domestic Workers Bill of Rights.  Unfortunately I was not able to address an area of the law that gives me the greatest concern: This bill would unduly broaden the definition of employer, unnecessarily increase who will be considered an employee, and create additional burdens on homeowners and occupants with respect to non-caregiver workers.  I apologize in advance for the length of this post (I usually try to keep them brief), but there is some background that I think is necessary.

    Putting aside the issue of whether personal attendants/caregivers should or should not be entitled to overtime, AB889 broadens the definition of an employer.  Under most wage orders, an employer is anyone who exercises control over the wages, hours or working conditions of the employee. (See Martinez v. Combs.) Court decisions have agreed that corporate officers and directors are not considered employers.  AB889, however, includes corporate officers or executives who directly or indirectly through third parties exercise control over wages, hours or working conditions of employers.  In essence, the bill eradicates the typical corporate shield that is a significant benefit of the corporate structure.

    Let’s consider how this broad definition could impact the typical independent contractor relationship most homeowners have with non-caregivers.  I’m talking about the gardener, the roofer, the pool cleaner, etc..  If you, as the homeowner, control the working conditions, then you are the employer.  If you decide on the wages you will pay or what hours the person will come into your home, then you are the employer.  You will not be able to hire a sole proprietor with no employees because otherwise you are arguably controlling the wages, hours and working conditions of the employee.  If you hire a company with employees, then hopefully the company will control the hours and wages, but I’m not so sure about the working conditions.

    Additionally, AB889 modifies the workers’ compensation laws to apply to any person who performs any work at or on your home regardless of how long they work at the home.  Labor Code Section 3351 defines who is an employee for workers’ compensation purposes.  Workers’ Compensation laws not only require workers’ compensation insurance coverage for all employees, but also requires employers to provide notice of certain rights under the Workers’ Compensation laws.  Currently, Labor Code Section 3352(h) excludes person employed by the homeowner for less than 52 hours in the 90 calendar days preceding the date of injury from the definition of employee.  AB889 deletes the 3352(h) exemption.  What that means is that you, as a homeowner, will need to carry workers’ compensation insurance for any person providing services to your home, such as gardeners, construction workers, pest control servicemen, cable installers, etc.  You will have to have workers’ compensation insurance for them even if they only come to your house one day for a couple of hours and even if they are covered by their own workers’ compensation insurance.  You will also have to provide them notification of their workers’ compensation rights.

    AB889 deletes a similar provision in Labor Code Section 226.  Labor Code Section 226 requires employers to provide itemized pay stubs to all employees.  The pay stubs must have specific information such as hours worked, wage rates, last four digits of the employee’s social security number, etc.  Currently, there is an exemption to that rule for employees employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance or use of the dwelling.  AB889 takes away that exemption.  Like the Workers’ Compensation laws discussed above, that means you will have to provide a pay stub to your gardener, cable installer, home improvement contractor, etc.

    Regardless of which side of the aisle you are on regarding overtime entitlements for caregivers, the other changes proposed by AB889 create a significant burden on everyone, overly broadens the definition of employer, and imposes unwieldy requirements in situations that do not need reform.  I encourage you to read the bill.  Talk about the issue with your friends, families and co-workers, and come to your own conclusions regarding whether this bill is the appropriate way to resolve the problems.  Then, write your representative and let them know your thoughts.  That’s what I’m going to do.

    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.