YOU CANNOT COMBINE REST PERIODS!

For some time now we have been advising our clients that they must separate 10 minute rest periods into each half of the day as per the wage orders.  Now there has been the first court trial after the Brinker decision to address the issue of combined rest periods.  Below is an edited version of an article from HRCalifornia white paper sponsored by the California Chamber of Commerce.  There is contact information on the bottom if you wish to read the full account but the important information is here:

California Court Affirms Rest Break Timing Requirement

A California court recently affirmed that, in general, rest breaks cannot be combined (Rodriguez v. E.M.E., Inc., 2016 WL 1613803 (2016)).

Relying on the California Supreme Court’s guidance in Brinker Restaurant Corp. v. Superior Court, the appellate court ruled in Rodriguez that “rest breaks in an eight hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.” The court acknowledged that unusual or exceptional circumstances may permit variation from the norm.

The Rodriguez case is one of the first since Brinker to expand on the issue of rest-break timing. In Rodriguez, the court ruled that whether the company can show that unusual circumstances justify its practice of combining rest breaks into a single 20-minute break before the meal period is an issue that cannot be decided on a motion to eliminate the case before trial (known as a motion for summary judgment).

The Rodriguez court remanded the case to a lower court so the issue can go before a jury.

General Guidance

The court relied on the Wage Orders, Division of Labor Standards Enforcement opinions and the Brinker decision to reaffirm the general rule that rest periods should fall in the middle of work periods and separated by the meal break “insofar as practicable” — which the court interpreted to mean “to the extent feasible.”

Following the Brinker guidance, the timing of such breaks in an eight-hour shift is that one rest break should fall on either side of the meal break.

Limited Departure From the General Rule

Now we know the general rule. But when is a departure from the permissible schedule allowed? According to the Rodriguez court, a departure from the general rule is allowed only if the departure can meet the following two-prong test:

1.   The departure will not unduly affect employee welfare; and
2.  The departure is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.

A departure from the preferred schedule that is “merely advantageous” to the employer will not meet the above test. Instead, the employer must show that the preferred schedule imposes a material burden and that departure from the norm is necessary to alleviate that burden.

In coming up with this rule, the court noted that the overall intent of California’s Wage Orders is to protect employee health and welfare.

Combined Breaks

The court also rejected the notion that employers are allowed to combine rest breaks, as the company in this case did. Again, the court reiterated the preferred schedule of one rest break on each side of a meal break.

A company has no right to combine rest breaks as a matter of law.

However, unusual or exceptional circumstances may permit a combined rest break. The court noted that there was only one circumstance that the former Industrial Welfare Commission had discussed allowing a combined rest break: where the business requires shifts in which the meal period occurs soon after the employee reports to work. The Rodriguez court noted that those facts were not before it.

Note: Employers are advised to consult legal counsel if they think they have a situation that allows them to depart from the general rule of a rest break on each side of a meal break.

Question for a Jury

In this particular case, the employer submitted declarations from employees that the combined rest break wasn’t harmful to them and that they preferred it.

The company also submitted evidence that the combined rest break was necessary because the nature of the production process meant that the employees needed a long time to prepare for the break and also time to resume activities after break. The company claimed that a departure from the preferred rest break schedule enabled the company to avoid material economic losses due to lost production time preparing for breaks and resuming activities after.

However, the employee who brought the case submitted his own declaration claiming that employees lost little or no work time in taking breaks, countering the argument that employees following the preferred break schedule would place a material burden on the company. Because of this declaration, the employer was not able to get rid of the case before trial, and further proceedings will be necessary.

This case has now been remanded, and we will see if the employer can prove that its departure from the general rule was justified. Or the case may be appealed to California’s Supreme Court. In the meantime, this published decision is good law.

Best Practices
Comply with break timing requirements. Provide the preferred schedule of one rest break falling in the middle of the work period before the meal period and one rest break falling in the middle of the work period after the meal period.
If you think your company has unique burdensome circumstances that would allow you to depart from the preferred schedule, consult legal counsel. It can’t be stressed enough: meal and rest break claims continue to be a source of costly litigation, penalties and fines.
Review your policies to make sure they are compliant with the preferred rest break timing.
Educate managers about their obligations relating to meal and rest periods and discipline managers who do not follow policy.
You may use this contact for more information from the California Chamber of Commerce Services: hrcalifornia.service@calchamber.com

US Dept of Labor Issuing new Rules for Salary Exemptions

Below is a release from the US Department of Labor.   Many states take their labor rules directly from the US  DOL but many others have their own rules under which employees are eligible for overtime pay.  For instance in California, a salaried person must be paid twice the minimum wage and be in a largely administrative position not doing the same work as the hourly employees.  They must exercise independent thought and actions and this is a pretty high standard to be exempt from overtime requirements.  Further, if you have salaried people, you better have a written agreement of what the salary covers as far as expected hours of work each day\week and if there is any overtime figured into the salary.  Otherwise, it is not considered as covering overtime due.  Check with your own state for their rules on overtime, but here is the statement from the US Department of Labor:

 Wage and Hour Division (WHD)

Notice of Proposed Rulemaking: Overtime

President Obama signing the memorandumToday the Department of Labor has announced a proposed rule that would extend overtime protections to nearly 5 million white collar workers within the first year of its implementation. Failure to update the overtime regulations has left an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees now applying to workers earning as little as $23,660 a year. For example, a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay. Today’s proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.

On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department to update the regulations defining which white collar workers are protected by the FLSA’s minimum wage and overtime standards. Consistent with the President’s goal of ensuring workers are paid a fair day’s pay for a fair day’s work, the memorandum instructed the Department to look for ways to modernize and simplify the regulations while ensuring that the FLSA’s intended overtime protections are fully implemented.

Following issuance of the memorandum, the Department embarked on an extensive outreach program, conducting listening sessions in Washington, DC, and several other locations, as well as by conference call. The listening sessions were attended by a wide range of stakeholders: employees, employers, business associations, non-profit organizations, employee advocates, unions, state and local government representatives, tribal representatives, and small businesses. In these sessions the Department asked stakeholders to address, among other issues: (1) What is the appropriate salary level for exemption; (2) what, if any, changes should be made to the duties tests; and (3) how the regulations could be simplified. The Department’s extensive outreach helped in shaping a proposed rule that is intended to be responsive to concerns raised by the regulated community.

The Notice of Proposed Rulemaking (NPRM) was published on July 6, 2015, in the Federal Register (80 FR 38515) and invited interested parties to submit written comments on the proposed rule at www.regulations.gov by September 4, 2015. Only comments received during the comment period identified in the Federal Register published version of the NPRM will be considered part of the rulemaking record.

Written comments received during the comment period will be helpful in shaping any final rule. Based on past experience and extensive work with the regulated community on other FLSA-related matters, we believe a 60-day comment period provides sufficient time for interested parties to submit substantial comment. Equally important, a comment period of this length, coupled with the feedback already received during the initial outreach sessions, will meet the goal described above of ensuring the Department has the level of insight from the public needed to produce a quality regulation. For these reasons we will not be extending the comment period.

Additional Information