IT’S A GOOD TIME TO REVIEW YOUR EMERGENCY ACTION PLAN

With all of the wild fires, shootings, hurricanes and earthquakes going on right now, we must remember that these events go on all of the time and it is not always in a cluster as it seems right now.  That being said, it is a great reminder that employers have a responsibility to their employees as well as to the business, to have a plan in place for such emergency situations.

Practice Your Emergency Plan

First on the list, do you have an emergency action plan.  If you are an employer in California,  you should have an IIPP (Injury Illness Prevention Program) and as a part of that program, you should have an Emergency Action Plan in place.  OSHA requires this and most states require a similar safety program.  It makes great sense and many insurance companies will ask for it as well.

But it is not enough to have an plan, you have to actually practice it.  When was the last time you had a fire drill?  Do your employees know how to give directions to your building?  How do you notify your neighbors if there is an emergency?  What happens if YOU are not there?  Where do your employees meet and who checks to make sure everyone is accounted for?  All of these questions and others should be addressed and practiced.

California employers must also have a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise.

Paying Employees

(these are California rules and may be different in your state)

Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees related to office closures.

Employers must pay exempt employees a full weekly salary for any week in which any work is performed. If the business is closed for the whole week, however, employers don’t need to pay exempt employees.

In emergencies, special pay rules apply for nonexempt employees.

If your business shuts down for any of the following reasons, you must only pay nonexempt employees for the hours they worked prior to being sent home:

  • Operations can’t start or continue due to threats to you or property or when recommended by civil authority;
  • Public utilities such as water, gas, electricity or sewer fail; or
  • Work is interrupted by an “Act of God” or other causes not within the employer’s control.

However, if you shut down your business at your discretion (and not for one of the above reasons), reporting time pay may be owed. When a nonexempt employee shows up for work as scheduled and is not put to work or is given less than half of his/her scheduled hours, the employee would be eligible for reporting time pay: pay for one half of the scheduled shift, no less than two hours and no more than four hours.

Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergency situations. Just remember to be consistent!

Leave of Absence

You may be required to provide various leaves of absence for your employees after an emergency including sick leave, medical leave and leave due to closed schools, loss of housing, etc.  So, be ready to aid your employees with these measures as well.  The state requires the employer by statute to follow certain guidelines and imposes fines for failure to comply.  In all cases, error on the side of helping the employee during stressful situations.

As always, if you need any help or have questions, HR Mobile Services, Inc is here to help.  You may contact our office at (559) 625-2322 and direct your questions to the Loss Prevention Department or the Legal Department (depending on your situation).  We are here to help!

A Short Explanation of the 7-day Work Week Penalty In California

The article below was originally  emailed to many of our customers and we felt we should share this information with all.  We  hope it is helpful.

 

The state of California says that an employee should not be forced to work 7 days in a week and has attached a penalty for doing this.  This is not new, but recently, there was some misunderstanding of the rule.  I will try to explain.

When we first meet with you to discuss your employee packet, we ask all of you to define your workweek.  This is NOT your pay period and it does not change.  Your work week is permanently listed as a 7-day period that has an exact starting and stopping time.  As an example, your work week may run from 12am Monday morning to 11:59 pm Sunday night.  Let’s use this example:

If an employee works on Mon, Tue, Wed, Thu, Fri, Sat and Sunday, then they worked all 7 days in the SAME workweek.  In this case, the employee would be entitled to be paid regular pay through Saturday, but the first 8 hours that they work on Sunday are paid and 1 ½ times their normal hourly rate.  All hours worked on that 7th day after 8 hours is at double-time pay.  Everything resets on Monday morning.  You cannot pick a different day to pay this “penalty pay” and you also may owe for daily or weekly overtime as usual for the week.

Using this same example of Monday-Sunday as the workweek, if the employee had Monday off, but worked every day for the rest of the week and continued working Monday, Tuesday and Wednesday of the next week before getting a day off on Thursday (9 days in a row), there is no penalty or 7-day rule pay because the employee had Monday off in one defined work week and Thursday off in the next work week.

The 2 places where we see the most use of the 7-day rule are in harvesting and when an employee switches shifts with another employee.   There are also some issues when milkers change from day to night shifts.

Most harvesters work a shorter day on Sunday and this reduces the cost of the 7th day pay.

In your handbook we give notice to employees that they must obtain consent from the supervisor before making any changes to their work with another employee.  This is so you have a chance to check and avoid having an employee work all 7 days in the same work week.

Finally, if you are going to have situations when employees work all 7 days, it may be a good idea to include the release form in your employee packet so you have advance notice of your employee’s wishes.

As always, if you have any questions regarding these issues, please contact us at our office number (559) 625-2322 and ask for the client services department or legal department.

You may also obtain more information on our other blog posting “work weeks upheld by California Supreme Court” from May 9, 2017  https://www.hrmobileservices.com/work-weeks-upheld-by-california-supreme-court/

 

OUR ARTICLE IN PROGRESSIVE DAIRYMAN (not just for Ag)

We were recently honored to be asked to contribute to one of the most widely circulated magazines in the dairy industry.  This is the first of 2 articles we have written for them.  This information is universal and not just for Agriculture employers.  We hope it is useful to you.

You may use this link to go to the article:

http://canada.progressivedairy.com/topics/management/new-osha-rules-emphasize-injury-reporting-discourage-retaliation

Please let us know what you think.  There is a comment section at the bottom of the article.

Thank you

 

 

USCIS ISSUES UPDATE TO I-9

In March, we finally got the updated I-9 that was about 6 months late.  Now they have updated that I-9 which has a date of July 17, 2017.

Work site enforcement and I-9 audits and inquiries by ICE will continue to increase.  An updated I-9 form has been issued.  Your Company needs to make sure that it is completing the new Form I-9 for every newly hired employee, auditing its I-9 forms, complying with the E-Verify requirements as applicable, and otherwise review and follow the immigration compliance strategies we have previously taught, including on how to respond to SSA and identity theft inquiries.  As part of your compliance, you should implement the new I-9 as soon as possible.

The link for the new form is here: https://www.uscis.gov/i-9  note: you cannot use the Spanish version except in Puerto Rico.

On July 17, 2017, USCIS issued a revised Form I-9.  All employers must use the new Form I-9 by September 18, 2017.  The newest version of the Form I-9 is dated 07/17/17 in the bottom left corner, with the expiration date of 08/31/2019 in the top left corner. You can use either the 11/14/2016 or the 07/17/17 Form I-9 through September 17, 2017.  On September 18, 2017, however, use only the 07/17/17 Form I-9 and make sure the I-9 is fully complete and section 1 must be completed on the first day an employee works for you.

There were changes made to both the Form I-9 instructions and the Form I-9 itself.  Make sure to post the new Form I-9 instructions on the wall where you have your required employment posters.  And, have the List A, B and C page available for employees when they complete the I-9 form.   Do not ask employees for specific types of documents to complete the I-9 form.  Always let the employee choose one document from List A or one document from List B and C.

The changes to the new Form I-9 are minimal.  One change is that the old sentence that read employee must complete the Form I-9 “no later than the end of the first day of employment” was changed to read that Section 1 must be completed “no later than the first day of employment.

Another change is that on the Form I-9 instructions, the DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to the Immigrant and Employee Rights Section to reflect the new name of the Office of Special Counsel (“OSC OF DOJ”)that was changed on January 18, 2017.  This is the government  agency that handles discrimination charges if a company is considered overzealous in asking for specific or additional documents, or is discriminatory in how it handles SSN mismatches, or if a company targets or singles our individuals with EAD authorizations or permanent resident cards differently than others.

And, another change is that on the Form I-9, List C on the List of Acceptable Documents, it was revised to add the Form FS-240 Report of Consular Birth Abroad and all the certifications or reports of birth issued by the Department of State were combined into one number on the List of Acceptable Documents.  The other List C documents (with the exception of List C) were then renumbered.

Please ensure that your Company implements the new Form I-9 before September 19, 2017.  It may also be a good time to conduct an internal I-9 audit and I-9 training to help ensure proper compliance with the immigration, employment verification, and E-Verify requirements, as applicable.  Let us know if you want us to complete any I-9s training with booklets and certificates or do any I-9 audits of I-9 forms etc.   Please stay vigilant on your internal I-9 audits and ensure your team is trained on completing I-9 forms, avoiding discrimination, know how to respond to government investigations, and are following protocols on responding to police, DES or other third party inquiries about identity issues.  Keep safe in the hot summer and take time now to audit your I-9 forms.

The fines have increased significantly.  Companies who previously had one audit are likely on the list for a second audit.  Those companies who already experienced a second I-9 audit and violations were noted, are likely to see a third audit so it pays to take the time to ensure your I-9’s are in compliance.  Please let us know if you have any questions or if there is anything we can do to assist you.  HR Mobile Services, Inc. will continue to monitor and update your current and future employee packets and forms to comply with State and Federal regulations.

UPDATE TO CALIFORNIA IRRIGATORS AND OVERTIME

Late last  year and early this year we discussed the new Agriculture Labor laws going into effect in California.  Mostly it was centered on the reduction of hours over time from a 10 hour work day to an 8 hour work day.

However, in the language of the bill was a very important phrase that said this bill affects “all Agricultural workers”.  This created quite a stir among lawyers and the split was about 50\50.  Some took this literally to mean that all workers in the agriculture profession, were now subject to the same rules and there would be no exceptions.  Others, pointing to the history going back the the 1930’s that exempted irrigators from the overtime regulations, that this would be cleaned up by the Labor Commissioner who is charged with rewriting the Wage Orders to comply with the legislation.

So far, we have not seen a new Wage order 14 so the one that is on the books is all we have to direct our work for now.

At the beginning of the year, we advised people, based on legal opinions, to continue treating irrigators as exempt employees until we heard from the Labor Commissioner.  At that time, we figured we would see something in writing by March and since it was raining, most employers were not working irrigators over 10 hours a day.  However, now we are into July with no definitive answer.  So, at this point, we are changing our recommendations, and it is our opinion that you SHOULD pay irrigators for overtime if they work over 10 hours in a day or over 60 hours in a week, just as you do other workers.

We base this opinion on the following:

  1. Previously, if the decision came down that you would have to pay overtime to irrigators going back to January 1, 2017, we were most likely not talking about a lot of hours and the employer can pay it out in one check and would most likely avoid any penalty fines.
  2. Now that we are in the heat of the year and irrigators are working full time, there is more possibility of them working overtime and the bill to pay back-wages is increasing.  At this time, it would be better to pay overtime incurred since July 1 and if we hear later that you must pay overtime from January 1, you can still pay that smaller amount in one check and avoid penalties.
  3. We don’t want to create a situation where you have many employees who have moved on to other employers and they come back to you and accuse you of not paying overtime.  This becomes more of an issue as time goes by.

The decision to pay overtime is still your at this writing, but we feel it is the better position to pay it now and avoid more trouble potentially in the future.  Even if the Labor Commissioner ultimately corrects the wording or interpretation and exempts irrigators from overtime, it is a small price to pay for avoiding litigation later.

WORK WEEKS UPHELD BY CALIFORNIA SUPREME COURT

Monday, the California Supreme court voted 7-0 in favor of the seven days in the same  work week interpretation.  This means that, if you define your work week, as long as an employee has one day off in that workweek, they are not eligible for premium ovcr-time payments.  They rejected the interpretation that employees should only work 6 days and affirmed the wording that employees may only work 6 days in the same work week.

Here is how it works.  If your work week is Monday through Sunday, and the employee works every day in the week, the hours they work on Sunday would be subject to the 7th day penalty where the first 8 hours are at time and a half and all hours after the 8th hour are double time.  However, if an employee worked Wednesday to the following Wednesday, there is no violation of the seven day rule because they had at least one day off in each work week as defined.

This is why it is so important to establish and notify your employees of your work week in your employee handbook and other documents.  It does not have to align with paydays, but it is preferable.  Remember, if you pay twice a month, it is possible that a payday falls in the middle of a pay period and you may miss an employee working through the seven day rule because part falls in 2 different pay periods.  You are still responsible for paying the penalty overtime if this happens.  You would apply it in the pay period where the seventh day was worked.

Overall, this is a victory for employers who have been following these rules as written for many years.  To change them now would have been a huge hit to employers across California.  Having one day off a work week is good for employer and employee, but a new law of 1 day off in any seven days could be hard to adjust.  This is especially true of businesses such as restaurants where you have high turnover, people calling in sick and then you have to ask another employee to come in to cover a shift.

So, rejoice, the courts did the right thing.  The best way to keep the government out of these things is to pay properly, follow the law and make sure your competition is doing the same.

PROTOCOLS IF OSHA, ICE OR OTHER AGENCIES COME ON YOUR PROPERTY

When any agency comes on the property, first notify the Manager/Owner of the Property.

If you are one of our customers, call HR Mobile Services at (559) 625-2322 or Ken directly

Keep the agents aside and away from other workers until you know the reason for their visit.

Ask to see their credentials.

Verify if this is a random visit, or due to a complaint being filed.

Make note of any dates that may be limiting their search.

If they are with ICE, you have 72 hours to produce the I-9s in question.  Do not let them intimidate you as this is your right.  Kindly ask them to leave and set a time and date to meet with them in 3 days.

If they are with OSHA, you can only put them off for an hour or so until the highest ranked supervisor on the property can be contacted and meet them.  Meanwhile, make sure they are kept by the office or away from viewing most of the property and employees.  Check your phones, as HR Mobile Services, Inc. may be trying to reach you to give you additional directions.  Make sure to have someone check restrooms for Paper and Paper towels.  Check for quick items like no personal food mixed with medication in the refrigerators, electrical panel doors shut, general clutter and tripping hazards put away.

IS WATER AVAILABLE AND PAPER CUPS WITH A TRASH RECEPTICLE NEARBY?

Keep your employees calm.  They are much safer on the dairy than if they leave the location.  Nothing can happen to them on the property, they are protected.

BE COURTEOUS AND LISTEN TO WHAT THE INSPECTORS ARE TELLING YOU.   YOU WANT TO HAVE A GOOD WORKING RELATIONSHIP AT THIS POINT.   YOU DON’T NEED TO BE THEIR FRIEND, BUT YOU DON’T NEED ANY ENEMIES EITHER.   STAY CALM! 

If you are one of our customers……..Call HR MOBILE SERVICES, INC. (559) 625-2322 IMMEDIATELY!

100% HEALED BEFORE RETURN TO WORK POLICY IS NOT LEGAL

Blanket policies that say an employee must be 100-percent healed before he/she can return to work after an injury are unlawful. Instead, you must assess whether the employee can perform the essential functions of the job with or without reasonable accommodation.

The Department of Fair Employment and Housing (DFEA) is the California equivalent of the EEOC Federal agency. Recently, there has been increased use of the Americans with Disabilities Act (ADA) in conjunction with worker’s compensation injuries. Specifically, employers must make a reasonable effort to accommodate modified duty or they are not complying with the ADA.

The Fair Employment and Housing Act (FEHA) prohibits discrimination against employees with disabilities and requires employers to provide a reasonable accommodation to allow qualified employees with disabilities to perform their jobs.

“Whenever an employee with a disability seeks an accommodation, the employer has a duty to provide an individual assessment to determine if that employee can perform the duties of the job, with or without an accommodation,” said DFEH Director Kevin Kish.

Policies requiring employees to be ‘100% healed from injury’ in order to work deny employees their right to an individual assessment and violate the FEHA.”

A recently resolved case cost the employer $250,000 and a number of policy changes and required training of management staff.

Our Worker’s Compensation personnel are willing to work with you and your adjuster to come up with ideas to allow the employee to work while recovering.

DEALING WITH EMPLOYEE WALKOUTS – DON’T REACH FOR TERMINATION PAPERS FIRST

The information below comes from the California Chamber of Commerce and provides a very good review of your rights as employers and employees regarding walking off the job.  HR Mobile Services, Inc. agrees with most of the assumptions in this piece.  However, I would also point out that it mentions other factors.  In the case of leaving live animals unattended this could be animal abuse and requires a higher standard of the employee and their actions.  Also, walking off without communicating with the employer or not showing up to work and not communicating with the employer is not a protected action.  In most cases, the employees were not walking off because of the particular employer or their work conditions.  One customer reported an employee said he was not coming in because the employer voted for Trump.  That is not a protected action.

Please read the full article below.

Quite a few news reports discuss recent employee walkouts across the country in protest of new federal policies, such as the recent “Day Without Immigrants” protests.

Employers are obviously concerned about how these protests might affect their business operations and what they should do. In some news reports, employers showed support for employees who choose to protest. But in other reports, employers found that the protest activity was cause for disciplinary action.

The situation can be tough to navigate.

If an employee doesn’t show up at all or walks out in the middle of a shift, this will certainly create a mess for employers, the customers they are trying to serve and the work that needs to get done. Employers want to be able to ensure productivity and maintain attendance policies.

Despite these legitimate concerns, employers should exercise caution before taking disciplinary action against an employee who fails to show up to work because of a protest. In some, but not all, circumstances, the employee’s behavior may be legally protected.

If you have concerns that employee walkouts will disrupt your ability to operate, the best course of action is to seek advice of counsel.

Possible Protections

The National Labor Relations Act (NLRA) protects the rights of employees to engage in “protected concerted activity,” which the National Labor Relations Board (NLRB) generally defines as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection (Sections 7, 8(a)(1)).

This right applies to both union and nonunion employees. In fact, the NLRB often enforces this right in nonunionized settings.

In some circumstances, when employees get together to specifically protest working conditions or job issues, such as wages, the NLRA protects those activities. For example, we saw workers protesting in 2015 for a higher minimum wage. Since this activity was related to improving the employees’ working conditions, it may be entitled to protection under the NLRA.

In other circumstances, the question is more difficult. For example, if workers walk off the job to participate in a general rally opposing the current administration, it is less likely that they are organizing together to try and improve their working conditions. In this situation, NLRA protections might not apply to the employees’ behavior.

It’s not going to be easy for an employer to make a split-second decision as to whether the workers’ activity is protected or not. Recent walkouts involved federal immigration policy and enforcement measures. Both of these can affect workplace conditions, especially if your business employs a large number of immigrants. But not all the protests zeroed in on a specific issue of improving workplace conditions.

Given the difficulty of determining whether the activity is protected, caution on the employer’s part and consultation with counsel is warranted before taking any disciplinary action. Each boycott may be different, and, thus, employee participation may or may not be protected. Also, blanket statements that the employees cannot participate without jeopardizing their jobs may not pass legal muster.

Unfortunately, this area involves a detailed analysis.

Loss of Protections

Keep in mind that employees can lose any protections they are entitled to. For instance, if employees engage in certain acts of misconduct, the NLRA will not protect them. Examples could include planning the destruction of property or threatening or engaging in violence.

If the walkouts are not isolated occurrences but are, instead, reoccurring, employees may also lose protection. Under current law, workers who strike multiple times, especially in the same labor dispute, can lose the NLRA’s protections and face discipline or termination. The NLRB, in some situations, has found that intermittent strikes are not protected.

Slowdowns, where the workers stay at work but don’t do anything, may also be unprotected.

Immigration Protections

California provides several protections against immigration-related discrimination and retaliation, laws that are stronger than even federal protections. These laws may come into play with the protests or walkouts.

Under California law, all individuals, regardless of immigration status, who applied for employment or who were employed in the state are entitled to all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law.

This includes state labor, employment, civil-rights and employee-housing laws. You cannot inquire about a person’s immigration status except when necessary by clear and convincing evidence to comply with federal immigration law. These laws are found in several overlapping California statutes (Civ. Code sec. 3339; Lab. Code sec. 1171.5; Health and Safety Code sec. 24000; Govt. Code sec. 7285).

California also has strong protections for immigrant workers who complain about unfair wages or working conditions (Labor Code sec. 1019). For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was paid less than the minimum wage.

Critically, it’s unlawful in California to report or threaten to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of the employee’s family because that person exercised a right under the Labor Code, Government Code or Civil Code. This is a broader protection than just protecting complaints about wages and hours; it also covers other rights, such as bringing a discrimination or harassment complaint under the Government Code.

In addition:

·         Business and Professions Code section 494.6 permits the state to suspend or revoke an employer’s business license where the employer makes a report or threatens to report suspected immigration status in violation of Labor Code section 244.

·         Penal Code section 519 provides that a person may be guilty of criminal extortion if the person threatens to report the immigration status or suspected immigration status of an individual, or his/her relative or a member of his/her family.

Both California and federal laws also protect workers from discrimination on the basis of national origin.

Off-Duty Conduct

Remember that California law protects employees for engaging in lawful conduct during nonworking hours. So if the employees engage in protests outside working hours, leave it be. Labor Code section 96(k) allows employees to bring claims for lost wages when they are disciplined or discharged for lawful conduct during nonworking hours.

California’s Labor Code section 1101 prohibits employers from adopting or enforcing any rule, regulation or policy that:

·         Forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office.

·         Controls or directs, or tends to control or direct the political activities or affiliations of employees.

Best Practices

If you are affected by walkout activity, keep the following in mind:

·         Plan ahead if you know that employees are going to engage in walkouts.

·         Deal with staffing issues.

·         Consider talking to your workers to allow them to explain why they are planning to participate in the walkout.

·         Consult legal counsel about the appropriate course of action.

·         Don’t automatically take disciplinary action or threaten disciplinary action without legal consultation.

·         Make sure that company policies are job-related and applied consistently and fairly.

·         Remember that your employees’ social media activities may also be protected.

·         Train managers and supervisors to be mindful of employee protection issues.

What do immigrant protections mean in relation to recent walkouts or boycotts?

·         Employers should not assume that an employee who protests is undocumented.

·         Employers should never ask employees to re-verify their eligibility to work (by completing a new Form I-9) simply because the employees are involved in political activity relating to immigration issues or because the employer is now suspicious that the employee is undocumented. The Form I-9 should have been completed at the time of hire.

·         Supervisors and managers should understand that using, or threatening to use, the suspected immigration status of an employee or employee’s family member because that employee is exercising protected rights is unlawful conduct.

RULES FOR ROUNDING PAYROLL PART 2

THIS IS A CONTINUATION FROM PART 1 OF THIS DISCUSSION. THIS NEW INFORMATION IS FROM LATE 2016.

Rounding times is allowed under California Law, but there has been a need for more information from the courts. The See’s Candy case is the rounding standard and has been bouncing around the courts for many years. An appellate court decision that further clarifies the ability of California employers to round employee timecard entries has been published.

By ordering its decision in Silva v. See’s Candy Shops, Inc. to be published, the 4th District Court of Appeal provides helpful guidance to employers on the factual circumstances that satisfy the standards for rounding of timecard entries.

The December 9, 2016, decision in Silva v. See’s Candy affirms that California employers may round employee timecard entries to the nearest tenth of an hour (6 minutes).

Background

See’s Candy uses a timekeeping software system to keep track of its employees’ working hours. The software system required employees to “punch” in at the beginning and end of their shift.

Timecard adjustments were made only in accordance with two See’s policies: 1) the nearest-tenth rounding policy; and 2) the grace period policy. Former employee Pamela Silva filed a class action lawsuit challenging these two policies.

Under the nearest-tenth rounding policy, in and out punches were rounded up or down to the nearest tenth of an hour. Under the separate grace period policy, employees whose schedule had been programmed into the timekeeping system could voluntarily punch in up to 10 minutes before their scheduled start time and 10 minutes after their scheduled end time. Employees, under See’s rules, were not permitted to work during that time, but could use it for personal activities.

In October 2012, the 4th District Court of Appeal issued an employer-friendly opinion by concluding that, under California law, employers may round employee timecard entries to the nearest tenth of an hour if the rounding policy is neutral, both as written and as applied. This ruling was particularly important because there was no statute or prior case law that explicitly authorized this common practice, which is permissible under federal law and followed by California’s labor agency.

The 2012 ruling did not explain how to determine whether a rounding policy had a neutral impact over a period of time and did not require any specific method of calculation for determining whether rounding resulted in under-compensating employees. Also not covered were the facts needed to support a summary judgment (issued without a trial) for an employer defending itself in claims alleging unlawful rounding on timecards.

Additional Guidance

The December 2016 ruling provides additional guidance regarding grace period policies, pointing favorably to See’s policy of prohibiting employees from working during the grace period and the “undisputed evidence” that employees engaged only in personal activities during the grace period and were neither working nor under the employer’s control during that time.

joined the U.S. Chamber of Commerce in asking the appeal court to publish its December 2016 ruling, pointing out that employers who use rounding are frequently the targets of litigation.

“Decisions addressing when California employers are entitled to summary judgment in such cases provide important benchmarks for the parties and for the courts charged with adjudicating rounding claims,” stated the joint letter asking that the decision be published.

For California employers facing class action lawsuits involving rounding claims, the letter CalChamber Involvement

CalChamber involvement in the case dates back to October 2011, when the CalChamber filed a letter urging the appeal court to review the trial court’s erroneous decision that the practice of rounding employee time entries to the nearest 6 minutes violated California law.

In a letter submitted by John A. Taylor Jr. of Horvitz Levy LLP, the CalChamber stated, “whether a rounding defense forecloses liability or merely creates a triable issue of fact to be resolved after class certification can literally be a multimillion-dollar question,” the letter said.