Employment Lawyers California

That 24/7 Workplace Could Cost Time-and-a-Half

Several years ago, as I was preparing to head off for a long weekend hiking in the Yosemite backcountry, I got a call from the CEO.

“Why won’t you be reachable?” he wanted to know.  He just read the email about my being out of touch with the office.

Because, I started to explain, there are no cell towers or service in the middle of the wilderness. He cut me off with a curt, “Maybe you should vacation somewhere else.”

An isolated incident? Not anymore. Today, says a Manpower survey, nearly two-thirds of the responding workers at least sometimes get emails in their off-hours from bosses who expect a reply.

“It’s now taken for granted that everyone has to check their work email during the weekend,” says Monika Morrow, SVP for Manpower’s  Right Management unit.

That’s most true for exempt workers, who likely made up the bulk of the 569 survey respondents. Non-exempt workers, however, have to be paid. Maybe not for every contact, but, as we’ll see in a moment, more often than not.

“It’s not a wage and hour issue” if the employee is exempt, says Anthony Oncidi , head of the California Labor & Employment Law Group at Proskauer Rose in Los Angeles. “They do the work or they can choose to leave.”

For non-exempt workers though, “it’s very much an issue we are beginning to see percolate through the courts.”

The U.S. Fair Labor Standards Act and state labor rules require employers to pay non-exempt workers for after-hours work that goes beyond minor, almost negligible amounts. Responding to a supervisor’s call about where a certain file might be, or if a bill was paid might be considered de minimus and not compensable if the time involved was trivial. Historically, such time slices weren’t easily measured and were too small to be worth the effort. The rule of thumb was less than 10 minutes.

Now, though, digital devices easily record and track messages and online time. As Oncidi notes, “it is no longer a swearing contest.” And companies that previously issued BlackBerries to only certain employees now are distributing them widely.

In Chicago, a police sergeant brought a class action suit for overtime pay because he and others were required to check and respond to messages on their department issued devices while off duty. The case is awaiting trial. A similar sort of case was brought by an ATT worker in California. The case was dismissed last year.

Temecula Business and Employment Lawyer Addresses Pending ...

› State Supreme Court to Determine Employee Meal Break Problem – The California Supreme Court is set to decide an topic of significance to employers in the restaurant and service industries. California law entitles a covered employee to take 1 or much more “meal” breaks if the employee works a selected quantity of hours in a workday. At issue in the case of Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008), is regardless of whether employers ought to merely provide employees with the opportunity to take their meal breaks or, as the plaintiff employees argue, the employer has an affirmative duty to make particular that workers in reality take their breaks. The problem comes up when an employee, for example, would prefer to work as an alternative of taking the specified break or voluntarily cuts the break short. It is of consequence because if an employer should make positive that meal breaks are taken, employees who did not take their breaks may well later try to sue their employer for “premium wages” under the Labor Code – i.e., 1 added hour of pay for every workday the meal period was not taken. A lower court in Brinker decided in favor of the employer, stressing that to need employers to make sure breaks are taken would location an unmanageable burden on them. Employers eagerly anticipate the Supreme Court’s ruling on the matter.

› U.S. Supreme Court to Resolve Case Featuring Indirect Employment Discrimination Claim – It is clear under federal anti-discrimination law that an employer decisionmaker – that is, one who hires, fires, promotes or demotes employees – can not take derogatory action against an employee based on that decisionmaker’s discriminatory beliefs. For example, a supervisor who terminates an employee out of personal bitterness toward that employee’s religion or race subjects the employer to impending liability under the law. But what about the circumstances where the decisionmaker lacks any discriminatory intent, yet fires an employee after being influenced to do so by yet another employee who discretely acted with discriminatory intent? Is the employer still liable? This dilemma comes up when an employee harboring discriminatory intent makes up a charge against another employee, which is then acted upon by a neutral decisionmaker who fails to perform an independent investigation of the allegation. The U.S. Supreme Court will attend to the concern in its review of Staub v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009). Notably, this theory of indirect discrimination has previously been efficiently used by plaintiffs in instances under California’s Fair Employment and Housing Act – so California employers really should act in awareness of the theory, regardless of the outcome in Staub.

The labor and employment lawyer's job, a survival guide / by Dipanwita Deb Amar

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