2008 was a busy year for the courts, and despite the state budget crisis, some interesting bills became law. However, we are still awaiting word from the state Supreme Court as to whether it will hear the Brinker case on meal and rest periods (discussed below). There may also be a change to the legality of same-sex marriage, depending on how the voters treat Proposition 8 in November. Stay tuned to HRCalifornia Extra for updates.
Also, review the
HR Watchdog on HRCalifornia.com for day-to-day updates. If you want a comprehensive review, as well as a printout of important cases and new laws impacting employers in 2009, attend CalBizCentral's HR 201 live seminar in January and February throughout the state or online February 12. Sign up for seminars beginning October 15 at the
CalBizCentral Store.
A few of the new laws/guidelines impacting the way you run your business in 2009 are:
Cell Phone Use
Since July 1, 2008, drivers have been required to use a hands-free device while talking on a cell phone and driving. Starting January 1, 2009, text-based communication while driving is prohibited as well, with the same penalties - $20 for the first offense and $50 for subsequent offenses. Specifically, the law prohibits writing, sending or reading text-based communication including text messaging, instant messaging and e-mail, on a wireless device or cell phone while driving.
What Should You Do?
- Update your policies, or get the 2009 Employee Handbook software to ensure compliance with these laws.
- Consult with legal counsel regarding the type of policy appropriate for your workforce regarding the use of cell phones while driving.
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Meal and Rest Compliance Unresolved - Case to Watch!
(Update): This case was appealed to the California Supreme Court, which agreed - on October 22, 2008 - to hear the case. Until the California Supreme Court issues its ruling, this case cannot currently be relied upon and should not be followed.
Compliance with California's meal- and rest-period requirements - mainly the question of whether employers must ensure breaks are taken or just simply provide them - has been a source of significant litigation in both federal and state courts. In early 2008, class certification for a meal- and rest-period lawsuit was denied by a federal district court, which found that nothing in California law required the employer to ensure that employees took their meal breaks, but rather the employer need only supply or make such time available to employees. Brown v. Federal Express Corporation 249 F.R.D. 580 (2008)
However, because this is a federal court ruling it did not change the law in California that employers must ensure employees stop working during their meal breaks. As such, merely providing meal breaks to nonexempt employees is insufficient.
Then, in July 2008, a California court of appeal denied class certification for almost 60,000 restaurant employees because the lower court did not properly consider the elements of the employees' claims in determining if they were susceptible to class treatment. Specifically, the court found that:
- While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken.
- 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.
- Employers are not required to provide a meal period for every five consecutive hours worked.
- While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken.
- 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.
Because rest and meal breaks need only be made available and not ensured, the court also found that individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment. Further, the off-the-clock claims are also not amenable to class treatment because individual issues predominate on the issues of whether employees were forced to work off the clock, whether the employer changed time records and whether the employer knew or should have known employees were working off the clock. Brinker v. Superior Court 165 Cal. App. 4th 25 (2008)
What Should You Do?
- Contact legal counsel to ensure that your policies reflect the most prudent practices relating to meal and rest breaks and tracking employee time.
- Always track hours worked and not worked by all nonexempt employees.
- Make sure supervisors and managers consistently enforce your policies and procedures, in particular, as they relate to meal and rest breaks for nonexempt employees.
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To learn about more new laws for 2009, click on the links below: