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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

 

 

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.

Final Thoughts on 2016 and a Caution to Legislators and Employers for 2017

I will begin this by saying that some of this article is focused on California, while much can be applicable to the rest of the United States.  The San Joaquin Valley is a microcosm of what has taken place across this country.  The rural, farming and agriculture areas of this country are tired of being ignored.   And finally, they stood up in November and got the attention of the people that think that life is only lived in big cities.

California politicians are very good at double speak.  They say they are supportive of Agriculture, but none of them every actually come to the Valley to talk to business owners.  On the rare occasion they do come to the Valley it is to talk to the workers or to point at a High Speed Rail train that is not going to do anything for people here.

The fact is, California, and many State governments across the country, would prefer if Agriculture would just go away.  They would much rather we were all working in a state full of Silicone Valley businesses.  They are cleaner, there would be no fight over water, and we could just ignore it altogether.  In the past election, we did not get visits by Hillary (Trump dropped in quickly) and Kamala Harris (the new Senator) didn’t bother with and knows nothing about this side of California.  The Governor has only been to Fresno a few times in 6 years and that is never to learn about real issues (he knows it all I guess).

For the rest of the country, the story is similar.  President Obama flew over the rest of the US and only visited a few coastal states in 8 years in office.  He came to California almost monthly to San Francisco or Los Angeles to attend a fund raiser, but on the ONE occasion that he came to the valley to discuss the drought, he got off the plane, went to a dirt field for about 1 hour and then flew out because he had a golf date in Southern California (where they had water to make beautiful greens for his putting).  We never saw a thing done about the drought after that and still have not until last week when a bill (0pposed by outgoing Senator Barbara Boxer) was signed by the President to help us build dams.  This was not because of any work done by the President, but by the work of our Representatives from the Valley that finally got enough support from  enough people in both parties to get this to the President despite Barbara Boxer.

One of the most telling examples of how Legislators view business owners is how they write regulations.  Almost all regulations start with the assumption that most employers are bad.  In fact, many times it is actually written into the introduction and states that this bill must be passed to protect the workers, etc.  The reality is that most employers work very hard with their employees to create a family atmosphere.  The regulations get in the way of much of this.  Every time the government mandates a benefit that many people are already doing for their employees, they add cumbersome requirements, and many pages of fines and penalties if you do not do it exactly right.  In a more practical world, doing your best should count for something, but not according to our Legislators.  So, every time they add a benefit, many employers remove another benefit so they can afford the one the government wants.  There is only one pot of money, but Legislators think employers can just invent more money like Congress does and it just isn’t the case.

If there is one takeaway from the recent Presidential elections is that middle-America and rural areas are tired of being ignored or shoved aside by our representatives.  If you don’t visit and really listen to their issues, you run the chance of being replaced.  Not all issues affecting business and employees can be handled by looking out the window in Los Angeles or Sacramento or Washington, D.C.  I hope they pay attention or 2018 could be a very turbulent year as well.

BUT THERE IS A RESPONSIBILITY OF THE OWNER\EMPLOYER AS WELL:

In 1999, in California, Governor Gray Davis signed the labor bills establishing daily as well as weekly overtime rules.  It also established a 30 minute employee meal with stern regulations.  Here we are 17 years later and there are still a number of employers who ignore, or do not know of these laws, or simply choose to go their own way.  This affects all of us.  When an employer does not follow the simple laws and refuses to do things like installing a time clock and paying people for the hours they work, they give every employer a black eye and give every Legislator an easy excuse to add new laws and regulations.  In other words, a few stubborn bad employers are making business hard for everyone else.  Instead of just complaining about the State or the Federal government, if  you know an employer that is not following the law, talk to them and let them know they are a big part of the problem.

The easiest way to pay people with the least amount of work on your part is to pay people exactly what they work based on a time clock.  Anything else you are doing is why we keep getting more “wage theft” headlines.  Let’s all resolve in 2017 to pay people for what they work and hold them accountable for the job.  Spend your hard time enforcing your rules instead of working hard to explain a poor payroll practice.  With minimum wages going up and other regulations coming to many States, 2017 is a good year to get on board the right train.  HR Mobile Services, Inc. is there to help you do it, but you have to follow the program to make it successful.

Have a Happy and Prosperous New Year!!!

YOUR PAY POLICIES COULD GET YOU IN TROUBLE!

Recent legislative actions at the federal and state level have brought renewed attention to the issue of compensation discrimination. From the EEOC publishing a new action plan on pay data collection to several states enacting new or revamping existing equal pay laws, closing the gender wage gap has become a nationwide priority. With this increased focus on combating wage discrimination and pay inequality at both the state and federal levels, employers should take the following steps to minimize the risk of a pay discrimination claim:

  1. Eliminate policies that prohibit employees from discussing wages – such policies are unlawful under the NLRA and many state laws.
  2. Develop a policy prohibiting wage discrimination for all employees and train supervisory employees on making employment decisions based on legitimate non-discriminatory criteria (e.g. merit, skill and performance).
  3. Carefully document all employment decisions relating to employee compensation and state the legitimate, non-discriminatory factors taken into account when making the decision.
  4. Regularly review and audit your pay practices to make sure wage discrimination is not occurring.

This does not require a great change for most of you out there.  However, you must be able to defend your neutrality when it comes to raises and pay for certain jobs.  You cannot forbid employees from discussing how much they make.  If confronted by an employee, give them a truthful answer.  If you do not think they are as good of a worker as this employee, tell them.  Be honest.  Don’t say that the other person is paid more because they need it for their family.  That is not a business reason.  Pay should be based on productivity and skill level not need.

As always, if you have a question about paying your employees, call HR Mobile Services, Inc. at (559) 625-2322.

CALIFORNIA DEFEATS OVERTIME BILL FOR AGRICULTURE AGAIN…..BUT…..

On Friday, there was a heated debate in Sacramento regarding a bill that would remove the exemptions for agriculture workers and bring them into the 8 hour day and 40 hour workweek.

First, a little history:

The Federal Government exempted agriculture workers back in the 1940’s from the FLSA and left the regulation of overtime to the States if they wanted to improve on this standard.  NO OTHER STATE DID…..EXCEPT CALIFORNIA.  In 1976 Jerry Brown (the first time as Governor), signed bills that established the 10 hour day and 60 hour work-week.  This was included in the Wage Orders that were established about 2001, specifically, Wage Order 14 with some agriculture work being moved to the 8/40 schedule with wage orders 8 and 13.

In 2010 and again in 2011, they tried to change the rules to 8/40 but it was defeated again with Governor Arnold Schwarzenegger stating:

“Unfortunately, this measure, while well-intended, will not
improve the lives of California’s agricultural workers and
instead will result in additional burdens on California
businesses, increased unemployment, and lower wages.  In order
to remain competitive against other states that do not have such
wage requirements, businesses will simply avoid paying overtime.
Instead of working 10-hour days, multiple crews will be hired
to work shorter shifts, resulting in lower take home pay for all
workers.  Businesses trying to compete under the new wage rules
may become unprofitable and go out of business, resulting in
further damage to our already fragile economy.”

So again on Friday, we had the arguments for and against.  3  pro-8/40 Assembly members felt it was important to quote Bible Scripture.  While interesting, this is not really the argument.  There were supporters from the usual groups, UFW, Labor leaders on one side and Agriculture employers on the other.  What was missing was those who really represent the interests of the employee.

Right now, a dairy worker generally works 60 hours a week, 10 hours a day.  If you pass this law, that employee will be working 40 hours a week, or 8 hours per day (5 days a week).  Since employers will not want to pay overtime, they will do one of 3 things.  They will change from two 10-hour shifts a day, to 3 8-hour shifts per day.  Or, they will reduce the size of their herds so they can be handled in 8 hours and this will further reduce the number of employees needed.  Finally, they can just close up and go to one of the other 49 states that want to work with agricultural employers.

When you reduce the worker’s income by 20 hours per week, you are not doing them a favor.  In fact, you may be creating a much worse situation.  In order to make up for the lost income (can you afford to lose $200 + per week in your pay?) the employee will have to look for a second income.  This means working at another dairy 2 days a week or working a second shift at another dairy.  This increases the likelihood of injuries due to being over tired, less time with family and most likely they will not have a day off at all.  Right now they get one or two days off a week, but if they have a second job, that will most likely go away.  YOU ARE NOT HELPING A PERSON WHEN YOU REDUCE THEIR HOURS, INCOME AND DAYS OFF.

Though well intentioned, this shows a real lack of understanding of the actual on the ground situation.  Typical of State Legislators, they sit in their Sacramento office and listen to advocates instead of getting their shoes dirty and talking to the actual people involved.  I would extend an invitation to any State Legislator to come and spend a day in our office to see the impact of some of their legislations.  I can guarantee there are at least 10 things that they do not know exist or the impact it has on employers and employees, and the environment.

Meanwhile, contact your representatives directly, not through an organization, and point out to them the tremendous loss to employees if this legislation goes through.  They won’t listen to your problems, but they may listen if you are discussing your employee’s concerns.

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

 

   

CALIFORNIA ASSEMBLY BILL TO END AG OVERTIME EXEMPTION (AB2757) PASSES COMMITTEE

AB 2757 (Gonzalez), which seeks to repeal longstanding law allowing California Agriculture to pay overtime after 10 hours of work in a day passed the California Assembly’s Labor and Employment Committee on April 6, 2016.

Presently, Labor Code section 554 exempts agricultural employees from Labor Code provisions regarding wage and hour, meal break requirements and other working conditions.  Known as the Phase-In Overtime for Agricultural Workers Act of 2016, this bill would remove this exemption and would create a schedule that would phase-in overtime requirements for agricultural workers over the course of four years, beginning in 2017.  Under the proposed legislation, beginning July 1, 2017, agricultural workers would receive overtime for all work after nine and one-half hours daily or in excess of 55 hours in one workweek.  The thresholds for daily and weekly overtime would be further reduced each subsequent year until January 2020, at which point agricultural employees would receive overtime for work beyond eight hours daily or 40 hours weekly.

Obviously, California Agriculture should do everything it can to oppose this ill-thought legislation. Sagaser, Watkins & Wieland PC will continue to monitor AB 2757 and all other pending employment and labor law bills pending in the California Legislature.  Please call us at 559-421-7000 if you have any questions.

This bill will reduce the paychecks of thousands of agriculture workers.  This bill forces employers to cut 20 hours a week out of the agriculture workers check.  It also reduces their mandated sick pay hours to 24 (from 30) and most of these families will not be able to exist on this amount of pay.  This could mean the end of Agriculture in California.  If employees cannot feed their families they will move away.   If they go, there won’t be anyone to tend the animals and crops.  This is a bill that needs to see the light of day and have a vigorous voice from all Ag employers.  Do it today!!

California is Reaching into Your Pockets AGAIN – 6 weeks Paid Time Off

I may be jumping the gun a little on this one, but yesterday, the city council of San Francisco UNANIMOUSLY voted that employers with over 20 employees will be required to allow family leave AT FULL PAY for 6 weeks!!

California already has California Paid Family Leave Act in place.  It is run through the EDD and is similar to State Disability Insurance.  It is paid for through payroll deductions and the employee receives about 55% of their normal pay while they are “bonding” with the new baby.  Now, San Francisco wants every employer to make up the 45% difference so that the employee is receiving 100% of their normal pay.  They do not say where this mystery money is supposed to come from, but you can imagine higher costs for everything, again, and another reason NOT to go to San Francisco.

I bring this new law up now because as we are painfully aware, all of our State Leaders come from San Francisco with a couple from Los Angeles.  So, every time San Francisco does something like this, it ends up in Sacramento a few months later.  So don’t be surprised when we are discussing this on a State level within the year.

So let’s review…..

We are raising payroll by 50%, then requiring that you give people at least 3 free days a year called sick pay, then we mandate that you provide health insurance and now you have to pay someone 45% of their normal wages for 6 weeks of non- productive work time.  And economists will tell you this will have no effect on business…..which shows the quality of education in California universities.  But that is for another day.

UPDATE!!!!!!.

On Monday, Governor Brown signed a new addendum that increases the payout to people on Paid Family leave to 60%.  This benefit could, in the future also create a new classification of worker.  Under a new definition, if an employee is earning below the poverty line they could fall into this new classification and be eligible for increased State funding for a variety of payouts.  This could mean that they would receive 70% of normal pay while other employee would only receive 60% for the same Paid Family Leave.  This could be extended to Unemployment Benefits, State Disability Pay and even employer covered expenses such as temporary disability under worker’s compensation benefits.  The costs to tax payers and employers just keep surging with no end in sight.

UFW HANDING OUT FALSE WAGE INFORMATION

 

 

Due to the recent signing of AB1513 there are a lot of people very nervous about Piece Rate pay and the new rules.  Please not the article below and then I will add more information below the article.  Also, as a reminder, Minimum wage goes to $10 per hour beginning January 1, 2016 in California.

UFW Distributes Minimum Wage and Piece-Rate Leaflet

Article Courtesy of: Rob Roy, President and Counsel, Ventura County Agricultural Association

Please find a leaflet that is being left on employee’s vehicles at worksites or along public roads by representatives of the United Farm Workers of America, AFL-CIO (UFW).

The leaflet seeks to inform agricultural employees as to whether they have heard about the “new wage law.”  They also claim that “thanks to the UFW, we have a new law that protects wages for farm workers that work by piece rate.”

The leaflet goes on to say that effective January 1, 2016, it is required that each employee is paid for their non-productive time (e.g., travel time between fields, training, exercises, etc.) based upon the minimum wage.  It also states that it is required that your employer allow you to take paid rest periods even though you work by piece rate based upon the average hourly rate earned.

Before December 15, 2016, the leaflet requests that if your employer has not given you retroactive pay, you should demand it for the last four years the employer failed to pay.  It goes on to state that you could be eligible for $8 more per day, up to $48 per week.

Lastly, the leaflet asks employees to remember not to sign documents that waive their right to this money.  This last reference is to retroactive release agreements between employers and employees to cover retroactive wages not paid such as non-productive time, rest or heat recovery periods or overtime.

There are several misstatements in this leaflet.  For example: (1) The UFW was not a party to the negotiation process; (2) Workers cannot demand unpaid wages beyond three years unless they are part of a class action lawsuit with a cause of action for restitution under the California Business and Professions Code; (3) There is no law that currently requires an employer to pay retroactive non-productive time and rest periods.  However, AB 1513, which becomes effective on January 1, 2016, permits employers to voluntarily make such payments to avoid potential class action lawsuits.

It should be noted that these leaflets may be passed out with Notices of Intent to Take Access by UFW organizers to your workplace.  If the UFW files a valid Notice of Intent to Take Access and files it with the ALRB, they will be permitted to take access to your business operations during three specified periods in the workday.  During such periods, they may be able to distribute such leaflets and speak with your employees concerning its content.

Do not attempt to restrain UFW representatives in passing out leaflets to your employees during lawful access.  Also, do not question your employees about what the UFW representatives discussed during the access periods.

If UFW organizers are accessing private property to put the leaflets on employee vehicles, you may intercede and inform the organizers that they are on private property, they are trespassing, and ask them to remove the leaflets.  To enforce your demand, you should take a photo of the individual placing the leaflet, as well as his/her car and license plate.

If they persist in not leaving your private property, contact the local police or sheriff’s office.

_________________________________________________________________________________________________________

AB 1513 was written to address the issue of unpaid rest periods, which, by law, should be paid.  Here is the problem….when an employee is working by piece rate, they are not paid when they are “resting” so the court said the employer must establish an hourly rate to pay the employee when they are not picking fruit or whatever the job is.  You cannot establish just a minimum wage for this time because it is not an incentive to take a rest break for less than you are making when you work.  So, they created a formula that involves taking the gross amount paid for a week, divided by the hours worked minus the 10 minute breaks and meal periods time.  That gives you the hourly rate when they are working.  This is the hourly rate you use to pay the rest breaks on a separate line on their pay stub.  We strongly suggest that you meet with your attorney and develop a plan for paying any employees who fall into this category.

There is also a ‘safe-harbor” time set up to pay back pay if you owe it, without incurring penalties.  This could save you thousands of dollars and again, it is worth a discussion with a good labor attorney to protect your rights.

You may also contact HR Mobile Services, Inc. for a general discussion of this issue before you speak to your attorney.  Just give us a call or email.