03.03.21
Meal Period Rounding Rejected by the California Supreme Court
HR NEWS
Written by Doug Larsen of Fishman, Larsen, & Callister.
Pursuant to California’s wage orders, an employer must provide employees with a 30-minute meal period before the end of the 5th hour of work. A second meal period must be provided before the end of the 10th hour of work. An employer satisfies this obligation when it relieves employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take a 30-minute meal period, and does not impede them from doing so. A violation results in the imposition of a penalty, referred to as a “meal period premium” unless the employee voluntarily chose to work during a meal period after the employee was relieved of all duty.
What happens if an employer uses a rounding practice to record an employee’s meal period? According to Donohue v. AMN Services, LLC, 2021 Cal. LEXIS 1294, issued by the California Supreme Court on February 25, 2021, the employer will likely be in violation of the meal period law. The problem that arises is that the law is very precise. It requires a meal period of no less than 30 minutes which must occur within the first five or 10 hours of work. Rounding does not provide a precise measurement for determining the time when the employee started the meal period, or the exact length of that meal period. Moreover, it does not compensate the employee for time worked during the meal period that the employer knew the employee was working.
Using the example from the Court, if an employee clocked out for lunch at 11:02 am and clocked in at 11:25, and if the company rounded to the nearest 10-minute increment, the time recorded for lunch would have been 11:00 am to 11:30 am. In actuality, the meal period was 23 minutes. This rounding practice not only masks the length of the meal period, it does not disclose the reason the meal period was not taken nor compensate the employee for time worked during the meal period.
Quoting a case involving BBSI which resulted in significant employer liability, the Court wrote, “when time is scarce, minutes count.” The practice of rounding is not as precise as the meal period obligations. A few minutes lost one day cannot be offset by a longer meal period on another day.
As a result, the Court held that employers cannot engage in the practice of rounding time punches with respect to meal periods. Employees are entitled to timely meal periods lasting at least 30 minutes.
Furthermore, time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. In other words, the burden is on the employer to show that an untimely or a short meal period was the result of an employee’s voluntary decision and not due to the demands of the job.
This decision should cause every California employer to consider its wage and hour practices, particularly timekeeping practices with respect to meal and rest periods.
How do you keep track of the exact time an employee leaves for a meal period, how long the meal period lasts, and documentation regarding the employee’s reason for a late or short meal period?
Have questions?
Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:
Dan Larsen – larsen@sierrahr.com
Janet Keene – keene@sierrahr.com
02.11.21
February 2021 COVID-19: Action Steps for Moving Forward
HR Headliner
The past year has felt a lot like trying to juggle on a unicycle – addressing multiple urgent situations at the same time, while trying to keep our balance in the face of changing regulations, safety protocols, and shut-down orders. But now, with case rates slowing and vaccines gaining momentum, we may be ready to take a deep breath and focus on longer-term policies and procedures.
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Sierra HR Partners is standing by to prepare your COVID-19 Prevention Plan and
assist you with necessary steps in response to ongoing COVID-19 concerns. Our hope is that COVID-19 and other infectious illnesses will become less of a circus act, and more like the confidence and calm of an Olympic gymnast! (We can dream, right?)
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Did You Know?
The Cal Savers state retirement savings program was created by SB 1234 in 2016, and provides automatic enrollment for workers whose employers do not sponsor a 401(k) or other retirement plan. Employers who do not offer their own retirement plans are required to register with the state according to the timeline below, report new hires, and facilitate employees’ plan contributions through payroll deductions. Employees will receive information from Cal Savers about their enrollment, with instructions for how to participate or opt out. On the Resources tab of their web site, Cal Savers provides a communication tool you may use to help employees understand the new options.
Employer Size Registration Deadline
More than 100 – September 30, 2020
More than 50 – June 30, 2021
5 or more – June 30, 2022
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The Department of Fair Employment and Housing has published updated versions of several required new hire notices. We recommend printing the documents below for your onboarding packets, or saving the links for use as needed. Spanish and other language versions are also available on the DFEH web site.
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President Joe Biden has made no secret of his desire to raise the federal minimum wage to $15 per hour. In one of his Executive Orders, he asks the Office of Personnel Management to make “recommendations to promote a $15 minimum wage for Federal employees.” The latest proposed COVID-19 stimulus package includes changing the federal minimum wage to $15 for all employees. While it is unlikely that this element of the stimulus plan will survive, we don’t know whether the new administration will use other means to accomplish the goal. If enacted, a $15 federal minimum wage would accelerate California’s progress toward that number, which is currently set for January 1, 2022 for employers of 26 or more employees, and 2023 for smaller businesses. We encourage employers to proactively assess any changes that would be required for exempt and non-exempt pay rates so that you can respond quickly if needed.
01.27.21
California’s Stay-At-Home Order Lifted: What Does This Mean For Your Business?
COVID-19
On Monday, Governor Newsom lifted the stay-at-home order that had been in place since early December.
While this is welcome news, it does not mean that all can return to normal. Lifting the stay-at-home order means a return to the tiered Blueprint for a Safer Economy plan, and Fresno County is still in the most restrictive “purple” tier.
To leave the purple tier, counties must have fewer than 7.0 new daily cases per 100,000 people and must have a lower than 8.0% positive test rate. As of January 26, Fresno County has 58.0 new daily cases and a 15.3% positive test rate. That is very much in the purple tier.
To leave the purple tier, counties must have fewer than 7.0 new daily cases per 100,000 people and must have a lower than 8.0% positive test rate. As of January 26, Fresno County has 58.0 new daily cases and a 15.3% positive test rate. That is very much in the purple tier.
Restaurants may resume outdoor dining and other businesses, including hair and nail salons and barbers, may resume operations. Retail operations can also expand their capacity limits from 20% (under the stay-at-home order) to 25% (under the purple tier restrictions).
All employers should maintain COVID-19 safety protocols including face coverings, social distancing, sanitizing work surfaces, and daily health screenings.
We encourage you to create a COVID-19 Prevention Program (CPP) for your business, as required by Cal/OSHA. Sierra HR Partners is happy to help. If you’d like us to assist in creating a customized, comprehensive CPP, please complete the questionnaire here.
12.04.20
The Virus That Stole Christmas: California’s Regional Stay Home Order
COVID-19
Blog post from Doug Larsen:
At noon on Thursday, December 3, 2020, Governor Newsom issued a “Regional Stay Home Order.” This order applies to any region in which the ICU capacity drops below 15 percent. It is anticipated that the San Joaquin Valley region will fall below the 15% capacity within days.
This order severely restricts business activities. We recommend that you review the order and determine whether your business can remain open, and if so, what restrictions have been placed on your operations.
What happens when the ICU Capacity Drops?
Closure of these business sectors:
Playgrounds, indoor recreational facilities; salons and barbershops; personal care services; museums, zoos and aquariums; movie theaters; wineries; bars, breweries and distilleries; family entertainment centers; cardrooms and satellite wagering; limited services; live audience sports; and amusement parks.
Additional modifications to these business sectors while maintaining 100 percent masking and physical distancing:
Outdoor recreational facilities. No food, drink or alcohol sales; no overnight stays.
Retail & Shopping Centers. Limited to 20 percent capacity (with metering); no eating or drinking; special hours for seniors and others with chronic conditions or compromised immune systems.
Hotels & Lodging. For critical infrastructure support only. This means no tourist guests.
Restaurants. Take-out or delivery only.
Offices. Remote working only except for critical infrastructure sections where remote working is not possible.
Worship & Political Expression. Outdoor services only.
Entertainment Production & Professional Sports. Operations permitted without live audiences.
Remain Open. Critical infrastructure; schools already open for in-person learning; non-urgent medical and dental care; child care and pre-K.
Private Gatherings are Restricted.
In the purple tier, meaning widespread infection, private gatherings must take place outdoors. Attendees must wear masks and physically distance. No more than three separate households may gather.
12.02.20
COVID-19 Update: CAL/OSHA Implements Extensive New Requirements
COVID-19
Before the Thanksgiving holiday, Cal/OSHA proposed emergency regulations to protect workers from COVID-19. These regulations have been approved by the Office of Administrative Law and are in effect as of yesterday, December 1st.
Complying with these regulations will be, as Doug Larsen has written at his California HR blog, “extremely time-consuming and expensive.” They include detailed and comprehensive requirements for a written COVID-19 Prevention Plan (CPP), workplace notifications, testing following a workplace exposure, and even providing “exclusion pay” to workers while they isolate.
Written Plans
Many employers have already created infectious disease prevention and response plans, perhaps based on guidance provided by the CDC or by the state of California at covid19.ca.gov. Sierra HR Partners has assisted many clients in developing these plans. Those plans will need to be updated in order to comply with the extensive new Cal/OSHA regulations.
The Cal/OSHA standard will apply to most businesses in California. There are exceptions for companies with a single employee or employees working from home, and for those covered by the Aerosol Transmissible Diseases standard (primarily healthcare organizations.)
The written CCP will look much like the Injury and Illness Prevention Program (IIPP) required by California law. It needs to include, for example, your methods for communicating with employees, and for employees to communicate with you. As with your IIPP, you will need to make individualized assessments of your business and circumstances to develop customized plans and policies. Most employers will need to create CCPs with 11 specific sections, including communication, hazard evaluation, return-to-work criteria, and others.
When there is a COVID-19 Case
As mentioned above, these regulations require employers to provide certain benefits in the event of a COVID-19 case in the workplace.
Notification
Businesses must notify employees who may have been exposed of the potential exposure within one business day. This must be done in a way that protects the privacy of any employee with COVID-19.
- Businesses must also notify the local Health Department once there are three or more COVID-19 cases in a 14-day period. This must be done within 48 hours.
Testing
- In the event of a COVID-19 case, testing must be provided to employees at no cost and during work hours if there is a possibility that they were exposed.
- In the event of an outbreak – when there are three or more COVID-19 cases within 14 days – testing must be provided at the outset and again one week later, and continuously/weekly afterwards for those who remain onsite.
Exclusion
The exclusion criteria in the Cal/OSHA regulations generally follow CDC recommendations.
- Employees exposed to a COVID-19 case must be excluded from work for 14 days from the last known exposure. (It has been reported that the CDC now recommends a self-quarantine of just 7-10 days from the last date of exposure, but California employers are advised to follow the more cautious Cal/OSHA standard.)
- Employees who are symptomatic must be excluded from work for at least 10 days, and may return to work once any fever has been resolved for at least 24 hours without the aid of medication and other symptoms are improving.
- Employees who test positive must be excluded from work for 10 days from the date the test was taken.
Exclusion Pay and Continued Benefits
The regulations require employers to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” if the employee who is excluded from work is otherwise able and available to work. According to the Cal/OSHA FAQ page, this means that “the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.”
Exclusion pay does not apply if the employee is unable to work for reasons other than isolation necessitated by COVID symptoms or exposure, such as a reduced work schedule. It also does not apply if the if the employer “establishes the employee’s exposure was not work-related.” This may involve documentation of the employee’s statement that a friend or family member is COVID-positive or other indication of non-workplace exposure.
Summary
This information is not meant to be comprehensive, but to introduce our partners to the extensive and complex requirements passed by Cal/OSHA. Please read Doug Larsen’s blog post mentioned above for more details. We encourage you to review your written safety plans in light of these new regulations (or to create them for the first time).
Businesses will need to think carefully about the policies and procedures they have in place. Many companies have allowed a somewhat relaxed atmosphere among employees, and activities should be reassessed in the face of these weighty regulations. While telework arrangements may not be ideal for efficiency and collaboration, they may be preferable for the near-term in an effort to better control potential COVID-19 cases and exposure.
Sierra HR Partners is ready to guide you in the development of your unique CCPs and discuss your other questions related to the new requirements. In some circumstances, legal guidance may be necessary. We know this information feels extremely heavy, but rest assured we will be here to help.
