The Meal Break and Rest Period Debate Continues – Labor Commissioner Sides with Employers
The Goldstein Law Firm
September 2009 Newsletter
“The Meal Break and Rest Period Debate Continues – Labor Commissioner Sides with Employers; Everything You Should Not Do When Dealing with a Pregnant Employee; The Fall 2009 Labor and Employment Seminar – Making Hard Employment Decisions to Survive the Great Recession and Prosper in the Great Recovery”
By: Charles H. Goldstein, Esq.
The Goldstein Law Firm
1. The Meal and Rest Period Debate Continues – Labor Commissioner Sides with Employers in an Amicus Brief filed before the California Supreme Court:
The California Supreme Court has been considering the issue of whether California Employers have to make certain that employees actually take meal breaks and rest periods or alternatively whether California Employers are only liable for meal breaks and rest periods that an employee does not take because an employer discourages his or her employees from taking these meal breaks and rest periods. In her amicus brief to the Court in Brinker Restaurant Corp. v. Superior Court, (2008) 165 Cal.App.4th 25, California Labor Commissioner Angela M. Bradshaw stated that “having employers force their employees to take breaks at specific times will ‘lead to absurd and harmful results.’”
I personally witnessed this absurdity when I was having dinner one evening at a major chain restaurant and two servers physically took a third server, who had just taken our meal order, off the serving floor. When I asked what had happened, I was told that the server was being taken of the floor because the restaurant wanted to make certain that the server took her meal break.
On other occasion, a client of our firm, who could document providing meal periods, was threatened with an $80,000.00 meal period penalty because a small fraction of the client’s workforce did not want to take their meal break between the 4th and 5th hour of work, but instead wanted to wait for the lunch truck that came at the 5th hour of work to take their meal break.
Employers who operate retail businesses, such as restaurants or retail stores, know that there are certain times of day when business is at its “peak” and employees must be available to service customers during these “peak times”. At present, the California Wage Orders Section 11 requires Employers to give employees scheduled to work 5 or more hours, a 30 minute unpaid meal period before the 5th hour of work and Section 12 requires Employers to give employees a 10 minute rest break so far as practical in the middle of each 4 hour work period. The Labor Commissioner recognizes the obvious absurdity that these rules, which were originally adopted when most employees worked in industrial factories, do not readily apply to today’s consumer based employment landscape.
I believe that Labor Commissioner Bradshaw’s entry into the Brinker case on the side of reason and common sense may tip the balance and cause the Court to sustain the decision of the Court of Appeals. In that decision, the Court of Appeals concluded that while Employers can not discourage employees from taking meal periods and rest breaks, Employers do not have to ensure that breaks are taken and can only be held liable for employees not taking these breaks if the Employer was, or should have been aware of employees not taking these breaks.
2. Everything You Should Not Do When Dealing with a Pregnant Employee:
In the recent case of Sasco Electric v. California Fair Employment and Housing Commission, California Court of Appeals, Fourth District (2009) an Employer challenged a decision by the Commission finding the Employer liable for pregnancy discrimination in violation of the Fair Employment and Housing Act (“FEHA”).
What makes this decision noteworthy, in my opinion, is the fact that the Employer in this case did everything wrong in dealing with the pregnant employee. In this case, the Employer, an electrical contractor, owned a 70 foot yacht that the Employer used to entertain guests. From late April to late July of each year, the Employer sent the yacht to Mexico. The Employer’s guests flew to Mexico to meet the yacht for 2 or 3 night fishing excursions 25 to 50 miles off the coast. The Employer also used the yacht each December to participate in an annual Christmas Boat Parade in Newport Beach, California.
The Employer hired Zibute Scherl to work as a deckhand on the yacht. She had previously work as a deckhand and later as a second captain on a 60 foot sport fishing boat and also worked for a water taxi service in Baltimore Harbor for the Ocean Institute aboard historic boats and on a variety of other boats. In addition, she was licensed by the U.S. Coast Guard as a U.S. Merchant Marine Officer.
Sherl became the second captain in training and the Employer’s Captain McIntyre offered to train her to dock the Employer’s yacht. What now follows are a series of communications between Sheryl and her Employer which formed the factual basis of the Commission’s finding of pregnancy discrimination, and the Court’s upholding of that decision.
The First Employment Law Sin – Telling an Employee “Don’t Get Pregnant”: Sherl met her Employer’s Executive Director, who was responsible for the yacht’s finances. He congratulated her on her recent marriage and told her: “Whatever you do, don’t get pregnant.” The Executive Director denied making this statement.
Ø The Goldstein Law Firm Suggestion: Pregnancy is a fact of life in the workplace. All Employers have a legal obligation not to harass and/or discriminate against pregnant employees. Employers should never tell an employee not to get pregnant or avoid getting married and over time getting pregnant. However, Employers have the right to demand that pregnant employees perform at an acceptable level and that pregnant employees provide medical documentation to continue to work during pregnancy.
The Second Employment Law Sin – “Pregnancy Does Not Mix With Work”: Sherl became the second captain of the Employer’s yacht and the Employer also hired a deckhand Timothy Best. Sherl informed Captain McIntyre that she was pregnant in February 2004. Captain McIntyre said that he was disappointed by the news that Sherl was pregnant because he thought her pregnancy would have an impact on her working on the yacht. In his experience, mothers do not want to work in the boating business. Also, he thought that Sheryl’s plan to work as long as possible during her pregnancy was “cavalier”.
Ø The Goldstein Law Firm Suggestion: If Captain McIntyre had these thoughts, he should have kept them to himself. An Employer should never tell an employee that pregnancy would adversely impact the employee’s employment.
The Third Employment Law Sin – Requiring a Physician’s Release following Pregnancy: The letter that the Employer sent to Sherl congratulating her on her pregnancy stated that the Employer requires a release from her physician indicating that she could perform her regular duties “without restrictions or limitations and without undue risk to yourself or others.” Since pregnancy is considered a disability that must be reasonably accommodated, demanding a release “without restrictions or limitations” would be improper and support a claim for pregnancy discrimination.
Ø The Goldstein Law Suggestion: Require a properly drafted release that protects the pregnant employee and the Employer.
The Fourth Employment Law Sin – “Avoid Job Recommendations”: Captain McIntyre sent Sherl an unsolicited letter of recommendation describing her as “the hardest working, responsible, boat savvy individual to work with me during my seventeen years on this vessel”.
Ø The Goldstein Law Firm Suggestion: Avoid giving letters of recommendation. If you find it absolutely necessary to give an employee recommendation, limit the scope of your recommendation to the following areas: the employee’s dates of employment, the employee’s job title, and the wages paid to that employee. By taking this approach, you can significantly reduce your chances of having your own words used against you later on in a wrongful termination/discrimination action.
The Fifth Employment Law Sin – Talking to Employees Following Termination or Layoff: After Sherl was terminated, she telephoned McIntyre and again asked him why her employment had been terminated. McIntyre told Sherl that she had not done anything wrong on the yacht and he would not have terminated her employment if she had not been pregnant. Although the company made a claim that one of the reasons she was laid off was her inability to dock the yacht, McIntyre did not mention this matter in the conversation.
Ø The Goldstein Law Firm Suggestion: Always be leery of discussions with former employees about why they were terminated or laid off. In fact, you should avoid such discussions at all costs. If you have such a conversation or if such a conversation is unavoidable, always tell the truth to the employee about why he or she was terminated or laid off, have a witness present, and keep good written notes of the conversation.
3. Making Hard Employment Decisions to Survive the Great Recession and Prosper in the Great Recovery:
The Goldstein Law Firm, a nationally recognized labor and employment law firm, is hosting its 32ND Annual Labor and Employment Law Seminar and inviting each of its clients to spend a morning from 9 a.m. to noon on Wednesday, October 14, 2009, at the Cerritos Center for the Performing Arts with me. A continental breakfast will be provided at the Seminar. The following Seminar Topics will be discussed:
· The mistakes employers make when terminating or laying off employees that lead to costly lawsuits and how to avoid them.
· The best way to remove “deadwood” employees who are impeding the company’s recovery.
· How to avoid costly lawsuits during the recovery from disappointed employees who are not recalled to work.
· Avoiding the pitfalls that trigger wage and hour class actions and how to prevent them from ruining your recovery.
· New labor and employment law developments including the proposed Employee Free Choice Act that could trigger, if enacted, a new massive waive of union organizing in the private sector, attempts to ban mandatory arbitration agreements, and new immigration “no match” policy.
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