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  • Being “On-Call” Does Not Consitute “Work”

    The Second Appellate District published its decision in Augustus v. ABM Security Services, which overturned a trial court’s award of $90 million in statutory damages, interest, penalties, and attorney fees for a class of security guards who were allegedly denied rest breaks.  There has been much controversy over the extent to which employers must relieve employees of duty while on rest and meal breaks.  The court’s opinion does a fairly thorough analysis and is worth reading.  The following are some highlights from the case.

    The trial court certified a class and granted plaintiffs’ motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. The trial court awarded approximately $90 million in statutory damages, interest, penalties, and attorney fees on the premise that California law requires employers to relieve their workers of all duty during rest breaks. The appellate court concluded the premise was false, and therefore reversed the order.

    ABM employs thousands of security guards, some sites where only a single guard is stationed, while others dozens could be stationed.  ABM policies required security guards to remain on-call and to carry a radio or pager even when the employee was on his/her rest break.  Labor Code Section 226.7, and the applicable wage orders, require employers to “afford their nonexempt employees meal periods and rest periods during the workday.”  The plaintiffs alleged since they were required to remain on-call,they were not relieved of all duties and therefore they were not afforded required rest periods.

    The appellate court compared the wage order’s rest period requirement and the language in Labor Code section 226.7, and concluded that while an employer cannot require an employee to perform work while on a rest period, being on-call (at least in this situation) did not require the employees to perform work.

    [A]lthough ABM’s security guards were required to remain on call during their rest breaks, they were otherwise permitted to engage and did engage in various non- work activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet. The issue is whether simply being on-call constitutes performing “work.” We conclude it does not.

    The guards had a variety of duties they would perform throughout the day, including greeting visitors, allowing egress and ingress to the premises, making rounds of the buildings, responding to emergencies, etc.  Although a guard could be called back to work to perform such tasks, “remaining available to work is not the same as actually working.”

    The court also differentiated rest breaks from meal breaks under the wage order.  Subdivision 11(A), pertaining to meal periods requires that an employee be “relieved of all duty” during a meal period. Subdivision 12(A), regarding rest breaks, contains no similar requirement. The court found that if the IWC had wanted to relieve an employee of all duty during a rest period, including the duty to remain on call, it knew how to do so. Additionally, since the IWC’s order allows a paid on-duty meal period in some circumstances, “it would make no sense to permit a 30- minute paid, on duty meal break but not a 10-minute paid rest break.”

    In an amended portion of the decision, the court looked at the meaning of the word, “work,” both as a noun and a verb:

    The word “work” is used as both a noun and verb in Wage Order No. 4, which defines “Hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(K).) In this definition, “work” as a noun means “employment”—time during which an employee is subject to an employer’s control. “Work” as a verb means “exertion”—activities an employer may suffer or permit an employee to perform. (See Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 (1944) 321 U.S. 590, 598 [work is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”].) Section 226.7, which as noted provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period,” uses “work” as an infinitive verb contraposed with “rest.” It is evident, therefore, that “work” in that section means exertion on an employer’s behalf.

    I’m not a linguist, but I know we will see this language quoted in future cases.

    In the end, the court concluded that “on-call status is a state of being, not an action. But section 226.7 prohibits only the action, not the status. In other words, it prohibits only working during a rest break, not remaining available to work.”

    Augustus will be useful to occupations other than security guards since all of the wage orders contain identical language regarding rest breaks.  Any industry where the employee is required to remain on-call while on a rest break, and any employee that is required to remain on-call during rest breaks, should review Augustus.

    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.

  • Do I Have to Pay Employees When They are Sleeping?

    UPDATE:

    The California Supreme Court granted review of Mendiola v. CPS Security Solutions, Inc. in the fall of 2013.  Until the Supreme Court issues its decision, employers may not be able to rely on the sleep time rules stated below.  If you have questions about your work situation, contact an attorney familiar with California’s overtime requirements.

    To some, this question may seem simple, but the answer may surprise you.  Generally speaking, an employer must compensate an employee for all “hours worked.”  In California, most wage orders define “hours worked” as, “the time during which an employee is subject to the control of an employer, and includes all the time that the employee is suffered or permitted to work, whether or not required to do so.”  This means that if I require my employee to be at the work site, the employee is under my control and therefore I am likely required to pay the employee.  Even if she is sleeping on the job.

    How does this general rule play out in jobs where an employee is required to be at the work site 24 hours a day?  There are a host of occupations that require a presence 24-hours a day, even if the employee is not actually performing work the whole time.  Caregivers (e.g., personal attendants), ambulance drivers, guards, and ship workers are just a few examples.  One option would be to split the 24-hour shift among several workers, and pay all workers for all hours they are required to remain on the premises.  At minimum wage ($8.00 per hour in California), this means an employer will have to pay at least $192.00 per day, and usually employ three different employees each day, just to meet the minimum wage requirements.

    Some employers choose to deduct 8 hours from the employee’s working hours as “sleep time” or as “on-call” time.  Federal regulations clearly allow an employer to deduct 8 hours from the employee’s hours worked in certain situations.  But California oftentimes does not follow the federal regulations.  A recent case, Mendiola v. CPS Security Solutions, Inc., may provide some guidance.

    CPS provides on-site security guards at construction sites.  The company provides a trailer with full amenities (e.g., bed, bathroom, kitchen, internet, tv, etc.) and the guard is required to live on the premises.  Monday through Friday, the guards are on active patrol 8 hours during the day (5:00 a.m. to 7:00 a.m. and 3:00 p.m. to 9:00 p.m.), and must remain on the premises at night.  On the weekends, the guards are on active patrol 16 hours during the day (5:00 a.m. to 9:00 p.m.), and must remain on the premises at night.  The guards can technically leave the premises at night, but they have to notify the employer ahead of time so the employer can schedule a relief guard, and the guard has to carry a pager and be able to report back to the site within 30 minutes.

    The employer and employees had written “On-Call Agreements,” specifying that the guards were free to engage in their own personal pursuits during the evening, so long as they remained on the premises.  If the guard responded to an incident during the night, the guard would be paid for the time spent responding to the incident. Otherwise, so long as the guard received at least 5 hours of uninterrupted “sleep time,” the guard would not be paid for the on-call period.  Mendiola sued CPS on behalf of himself and other similarly situated guards, alleging the guards should have been paid for all hours spent at the work site because they were subject to the employer’s control.

    Unsurprisingly given past court decisions, the court determined that the time spent on site was compensable “on-call” time.  The significant restrictions placed upon the employee combined with the fact that the employee’s presence on site was primarily for the benefit of the employer meant the employer was required to pay the employee for all hours spent at the site.

    The court went on to say that when the employees worked a 24-hour shift (e.g., weekend shift), the employer could deduct 8 hours for the time the employee spent sleeping.  This is surprising because, with the exception of wage order 5 (which has a different definition of “hours worked” for employees that are required to reside on the premises, and for certain other exceptions such as ambulance drivers and attendants), there is no applicable statutory or regulatory exception for sleep time.  After concluding that the federal regulations were not appropriate authority upon which to analyze the “on-call” time, the court concluded it could follow federal regulations with regard to “sleep time.”  The court relied Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16 and Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361.  Although those cases revolved around different wage orders, both cases concluded that an employer could deduct for sleep time when an employee worked a 24-hour shift, provided the employee actually received the sleep time and the employer and employee agreed that the employee would not be paid for the time spent sleeping.  The Mendiolacourt went even further and concluded that the “sleep time” rule is applicable to all wage orders that have similar definitions of “hours worked.”

    We agree with the courts in Seymore and Monzon that because the state and federal definitions of hours worked are comparable and have a similar purpose, federal regulations and authorities may properly be consulted to determine whether sleep time may be excluded from 24-hour shifts. Further, we find this determination to be applicable to all wage orders that include essentially the same definition of “hours worked” found in Wage Order No. 9, including Wage Order No. 4.

    The court’s decision indicates an employer does not have to pay employees when they are sleeping if:

    1. The employee is working a 24-hour shift,
    2. The employee receives at least 5 hours of uninterrupted sleep time,
    3. The employee is provided a comfortable place to sleep, and
    4. The employer and employee enter into an agreement covering the sleep time.

    Based on the court’s decision, I have a few recommendations.  Do not assume that just because an employee has nothing to do means you don’t have to pay the employee.  You must pay employees for all hours worked.  If you have an employee working a 24-hour shift, you may be able to deduct up to 8 hours for sleep time, but you must have an agreement in place before the employee performs the work.  The agreement should be in writing, and preferably reviewed by an attorney familiar with wage and hour laws.

    I highly recommend speaking with an attorney to see whether your payroll practices comply with the 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.

  • 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.

  • Prevailing Employer in Meal/Rest Break Suit Entitled to Attorneys’ Fees

    11/17/2010 Update: The California Supreme Court granted review of Kirby v. Immoos Fire Protection.  We will have to wait for the Supreme Court’s decision to determine if I was correct.

    In 2000, the California legislature added some teeth to California’s meal and rest break laws.  Prior to 2000 employers were required to give employees meal and rest breaks, but there was no penalty if the employer refused to allow employees to take their legally mandated breaks.  In 2000 the legislature enacted California Labor Code Section 226.7 which requires employers to pay an additional hour’s pay for each day in which a meal and/or rest break is not provided.

    The California Supreme Court later decided that the additional hour’s pay is a “wage” and not a “penalty.”  See Murphy v. Kenneth Cole.  Since that time we have since a proliferation of suits alleging a violation of Labor Code Section 226.7.  If court filings are to be believed there is hardly an employee in California that is allowed to take the required meal and rest breaks.  I rarely see an overtime case filed that does not include a missed meal and/or rest break claim.

    When the court first decided Murphy I recall thinking about how it would affect the attorneys’ fees provisions in the Labor Code.  Under Labor Code Section 1194 the prevailing employee is entitled to recover his/her attorneys’ fees in an action for unpaid minimum wage or overtime.  The employer can never recover its attorneys’ fees in an unpaid minimum wage or overtime case.  Labor Code Section 218.5, however, allows the “prevailing party” to recover attorneys’ fees in any action for nonpayment of wages other than minimum wages or overtime.

    Based on Murphy and the language of Labor Code Sections 218.5 and 1194, I theorized that an employer that successfully defeats a claims for unpaid meal and/or rest breaks would be entitled to recover its attorneys’ fees. In the common unpaid overtime case where the employee “throws in” a claim for missed meals/rest breaks I believe the employee is at risk of having to pay a portion of the employer’s attorneys’ fees even if the employee prevails on the unpaid overtime claim unless the employee also prevails on the missed meal/rest break claim.

    Well, the Third Appellate District agrees.  In Kirby v. Immoos Fire Protection (10 C.D.O.S. 9451), the court came to the same conclusion I did: because a claim for missed meal/rest breaks is a claim for “wages” other than minimum wage and overtime, an employee who does not prevail on those claims is liable for the employer’s attorneys’ fees incurred in defending against those claims.

    Attorneys representing employees in unpaid overtime and minimum wage cases need to carefully consider whether to include the unpaid meal/rest break claim.  Considering the fact that employers are not required to force employees to take rest breaks (whether this is true with regard to meal breaks remains to be seen) or to track the rest breaks (which is not the true with regard to meal breaks) means prevailing on a rest break case may be difficult.  Good attorneys will carefully interview their clients, and hopefully other percipient witnesses, before deciding to add the rest/meal breaks claim as a matter of course.

    Employers should not treat this as a license to violate the law.  To the contrary.  Although you may be able to offset a judgment against you by the amount awarded to you in attorneys’ fees, actually collecting an award of attorneys’ fees is usually problematic at best.  The best policy is to know the law, follow the law, and ensure you have accurate records reflecting what occurred.  But you already knew that!

    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.

  • 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.

  • 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.