On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Last week I was listening to the Giants game, my penance at the conclusion of another frustrating baseball season.
I got more than I bargained for. During a single broadcast, I heard not one, but two, separate commercials advertising the services of different plaintiffs’ employment law firms soliciting employees in the listening audience to arrange a “free initial consultation” for the purpose of exploring ways of suing their employers. These ads specifically mentioned overtime compensation, meal and rest breaks, workplace harassment and employee leave rights, among other potential claims.
Perhaps I’m sheltered, but it struck me that advertising such an offer to millions of potential claimants represented a major uptick in the liability exposure facing employers.
This is because most employers remain frightfully uninformed as to how vulnerable they are to labor and employment-related claims. They are only a “free consultation” away from finding out.
“You’ve Been Sued…”
What follows is a cursory labor compliance “audit” that includes just a few of the subjects employees are typically asked about during a “free initial consultation.” It may be a useful exercise in determining if your firm will appear to be an attractive target:
- Many employers, generally aware of their liability exposure to “employees,” go to great lengths to characterize workers as “independent contractors.” Although this stratagem was always risky, the 2018 California Supreme Court Dynamex decision makes it even more difficult to sustain a legally-enforceable independent contractor relationship. If employers understood the exposure they face for mischaracterizing employees as independent contractors, they would never consider starting down this path. Calling workers “volunteers,” “interns” or “trainees,” and other similar gimmicks, is just as risky.
- Employees who work more than five hours are entitled to a 30-minute, uninterrupted, uncontrolled meal period, which must begin before the end of the fifth hour of work.
- Employers must provide an uninterrupted paid rest break of 10 minutes for every four hours worked, or “major fraction thereof.” During rest breaks, employees must be relieved of all duty, the employer must relinquish all control over employees, and employees must be free to leave the premises. There are no on-duty or on-call rest periods. It is imperative that meal and rest break policies in employee handbooks include these provisions. These requirements have been strengthened by present California Supreme Court decisions, are rigidly enforced, and frequently form the basis of class action lawsuits since employer violations typically involve multiple employees. Lawyers’ fees must be awarded to prevailing employees, and these frequently dwarf the amount of the original claim.
- Employers may not make any inquiries, or use any information, pertaining to an applicant’s prior criminal record until a conditional offer of employment has been made. As a result, any employment applications in use prior to 2018 are presumptively unlawful.
- If ten percent of the workforce speaks English as a second language, written pregnancy disability and transfer right policies (which are required by law), as well as family and medical leave policies (if applicable) must be translated.
- Exempt employees must be paid a salary of at least $960 per week, and this is a fixed amount not subject to reduction. Translation: the salary of exempt employees generally may not be docked due to absence, subject to very limited exceptions. Doing so could subject the employer to liability for all overtime hours worked by the “exempt” employee for at least three years.
Isn’t it time to schedule your own labor compliance audit, before a plaintiff’s lawyer does it for you?
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 37 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 37 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.