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  • Look Out Brinker and Brinkley, Here Comes Sharon

    As employers and employee advocates eagerly await the California Supreme Court’s decision in Brinkley and Brinker regarding the lengths to which employers must ensure employees are afforded the opportunity to take meal breaks, some companies have decided to go so far as to discipline employees who voluntarily work “off the clock.”  I have to admit that when a manager asks me, “what do I do if an employee insists on working through lunch,” I have offhandedly commented that the only choice may be to discipline the employee for refusing to follow the employer’s reasonable directions.  Well, it turns out that may not be the best advice.

    A recent Chicago Tribune article reports a victory for Sharon Smiley after she was fired for working during her lunch hour.  In Illinois, like California, employees are entitled to a lunch break in the middle of the day.  After 10 years of employment, Sharon Smiley decided to work through a lunch break to finish some work. Her manager became upset because Sharon was apparently in violation of company policies so he sent her to HR.  HR had a short discussion with her and then fired her for misconduct (violating company policies) and insubordination (refusing to follow the employer’s instructions).  Sharon was devastated.

    To add insult to injury, the company opposed her unemployment insurance claim.  She went to several different attorneys, all of which told her she had no chance of winning.  Undaunted, and really with no other choice, Sharon represented herself.  She appealed the initial unemployment insurance benefits denial, and the superior court judge overturned the decision.  Last week an appellate court upheld the lower court’s decision allowing Sharon to obtain unemployment insurance benefits.

    To my knowledge there are no plans to file a wrongful discharge claim.

    The article is particularly interesting here in California as the Supreme Court decides whether employers must force employees to take lunch breaks or merely ensure employees have a realistic opportunity to take the required breaks.  I guess I’ll have to add a few more caveats to my advice.

    You can read the original Chicago Tribune article 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.

  • 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.