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JANUARY 2005 I. LEGISLATIVE/REGULATORY
UPDATE On December 10, 2004, in direct response to a request from California Governor Arnold Schwarzenegger, the California Division of Labor Standards Enforcement (“DLSE”) proposed emergency regulations softening the harsh effects of California law relating to meal and rest periods, including the penalties imposed on employers for violations. Under current law, all employers must require all non-exempt employees who work at least five hours to take a 30-minute, uninterrupted, meal period. If an employee works more than five but fewer than six hours, the employee is permitted to waive the 30-minute period. If the employee fails or refuses to take the 30-minute meal period, even if the employer makes the break available, the employer is required to pay the employee one hour of wages as a penalty for the employee not taking the legally-mandated meal period. Had the proposed emergency regulations been enacted, an employer would have been deemed to have provided the required meal period if three conditions were met:
Further, an employer would establish that a meal period has been provided if the employer informs the employee of the circumstances under which the employee is entitled to take the meal period, and the employee acknowledges in writing that he or she understands those rights. The proposed regulations also clarified when the meal periods, first and second, must commence and explained that any penalty owed and paid by an employer to an employee under Labor Code section 226.7 is considered a penalty, and not “wages.” On December 20, 2004, the proposed emergency regulations were withdrawn and permanent regulations were proposed. Had the emergency regulations been enacted, they would only have remained in effect for 120 days. A decision was made to opt for a more formal and permanent resolution to this problem. These proposed permanent regulations are substantially similar to the emergency regulations, and provide examples of how the regulations would work. Because these are proposed permanent regulations, there will be a formal hearing process. Three hearings are scheduled during the month of February, to take place in San Francisco, Los Angeles, and Fresno. Public comments can also be made in writing by February 14, 2005. Hopefully, once the dust settles, there will be permanent, rather than temporary, regulations resolving this significant issue. Klinedinst will keep you posted as developments occur. Once again, maintaining accurate records is key. We suggest employers insert language at the bottom of all time records wherein employees certify that they are aware of the meal and rest period requirements. This type of language will further assist employers in complying with the new proposed regulation. |
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Labor Code Private Attorneys General Act of 2004 On August 11, 2004, Governor Arnold Schwarzenegger signed into law Senate Bill 1809 which, among other things, amended Labor Code section 2699 et seq. Written notices that are required under the Labor Code Private Attorneys General Act of 2004 to be sent to the Labor and Workforce Development Agency are to be sent by certified mail to the following address: Labor and Workforce Development
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Whistleblower Posting Pursuant to California Labor Code section 1102.8(a), employers in California are required to prominently display in lettering larger than size 14 pica type a posting about employees’ rights and responsibilities under the whistleblower laws, including the telephone number of the whistleblower hotline established and maintained by the Office of the California Attorney General. The DLSE has prepared a sample posting that it believes meets the requirements of Labor Code section 1102.8(a), except for being larger than size 14 pica type, at: http://www.dir.ca.gov/dlse/WhistleblowersNotice.pdf This sample is not the only option though, as employers are free to develop their own posting. |
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II. JUDICIAL UPDATE Anticipated Complaints Can an employer be sued for firing an employee who is simply thinking about making a safety violation complaint? According to a recent California appellate decision, the answer may be yes. In Lujan v. Minagar, an employee of a beauty salon (“the Employee”) was purportedly fired because the manager was afraid that the Employee would file a complaint with a government agency. The owner had recently been cited for California Occupational Safety and Health Act workplace safety violations after another employee complained to Cal-OSHA. In firing the Employee, the manager said words to the effect that she was afraid that “[The Employee] will be the next one to report me.” The Employee complained to the California Labor Commission, and there was a subsequent action against the beauty salon. California Labor Code section 6310 prevents an employer from retaliating against an employee who has reported workplace safety violations to Cal-OSHA. Essentially, an employer cannot fire someone who has complained about workplace safety. What is novel about Lujan, however, is that the Employee had yet to complain about any workplace violations. She was fired simply because her employer thought she might complain. The court found that this, too, is prohibited activity under Labor Code section 6310. The court noted that action taken against an employee in anticipation of that person making a complaint is no less retaliatory than action taken after an employee actually complains. The court further stated that to hold otherwise would create a perverse incentive for employers to retaliate against employees who they fear are about to file workplace safety complaints before the employees can do so, thereby avoiding any liability under Labor Code section 6310. While it may be difficult for an employee to prove this kind of anticipatory retaliation, employers should exercise care in termination decisions.
If you would like to discuss these or any
other employment law matters, please do not hesitate to contact any member
of Klinedinst's Employment Law
Department.
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