Storm's California Employment Law

Happy New Year

Unless the Legislature repeals the Labor Code in an emergency session, today will be the last day of posting for 2004. I was thinking about doing a 2004 retrospective, or a 2005 "what's new," but I'm sure that the shock and awe literature from BigLaw has that covered.

Anyway, CLEL hopes your 2004 was great and your 2005 is better!

Emergency Regs Withdrawn in Favor of Permanent Ones

Or "DLSE Discovers Administrative Procedures Act" (;

No emergency regs, folks. They will be proposing permanent ones. Take a look.

TITLE 8. INDUSTRIAL RELATIONS
Division 1. Department of Industrial Relations
Chapter 6. Division of Labor Standards Enforcement
Subchapter 11. Meal and Rest Periods
§13700. Meal and Rest Periods
(a) Definition. As used in this section, “work period” means that period of time during which an employee is subject to the control of the employer. A work period begins at the time an employee begins work and ends at the time the employee either takes a meal period or stops work for the day. A new work period begins each time an employee resumes work after taking a meal period.
(b) Requirement to Provide Meal Periods
(1) An employer shall be deemed to have provided a meal period to an employee in accordance with Labor Code Section 512 if the employer:
a. Makes the meal period available to the employee and affords the opportunity to take it; andb. Posts the applicable order of the Industrial Welfare Commission; andc. Maintains accurate time records for covered employees, as required by the posted order;
(2) As a further precaution beyond the criteria required under (b)(1), an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period in a way that permits the employee to acknowledge in writing thathe or she understands those rights.
(c) Beginning of a Meal Period
(1) Employment of less than 6 hours per day an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. If the total work hours per day of the employee are no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.
(2) Employment of more than 6 hours, but less than ten hours, per day.Unless provided otherwise by an applicable order of the Industrial Welfare Commission, a meal period as required by Labor Code Section 512(a) may begin before the end of the sixth hour of the work period.a. An employer may not require an employee to begin a meal period after the end of the sixth hour of work, except as provided in Labor Code sections 512 (b) or (c).b. If an employee requests a meal period to begin after the end of the sixth hour of work, an employer is not in violation of Labor Code 512 so long as the employee was provided the availability and opportunity to take a meal period before the end of the sixth hour of work.
(3) Employment more than ten hours but less than twelve hours per day.An employer may not employ an employee for more than 10 hours per day without providing a second meal period of not less than 30minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
(4) Examples
Example 1: A non-exempt employee begins work at 8:00 a.m. andworks without a meal period until 1:00 p.m. The employer is required to provide a meal period to the employee at this point ,as the employee will work more than 5 hours. However, if the employee’s work will end no later than 2:00 p.m., the meal period may be waived by mutual consent of the employer and the employee.Example 2: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:10 p.m. The employee has worked over 5 hours and is entitled to a meal period. The employee has not requested the meal period to begin after the end of the sixth hour of work. Without the employee’s request, the employer may not require the meal period to begin after 2 p.m. as this would beafter the end of the sixth hour.Example 3: A non-exempt employee begins work at 8:00 a.m. and is provided a meal period, which begins at 10:30 a.m. The beginning of the meal period ends the initial work period of that employee’s work. Upon returning to work at 11:00 a.m., the employee commences a new work period. The employee then works until 4:00 p.m. If the employee continues work beyond this point, the employer is required to provide another meal period to the employee, as the work period will exceed five hours. However, if the employee’s work will end by 5:00 p.m., the second meal period may be waived by mutual consent of the employer and the employee.Example 4: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:00 p.m. After taking a half-hour meal period, the employee returns to work at 1:30 p.m. and works until 6:30 p.m. If the employee works beyond this time, the employer is required to provide a second meal period to the employee. However, because the total hours worked by the employee in the day exceeds 10 hours, but not more than twelve, the second meal period may be waived by mutual consent of the employer and the employee as the first meal period was not waived.
(d) Penalty for Failure to Provide Meal or Rest Period. Any amount paid or owed by an employer to an employee under Labor Code section 226.7, subdivision (b), for failing to provide the employee a meal period or rest period in accordance with anapplicable order of the Industrial Welfare Commission is a penalty and not a wage.(e) Severability. If the application of any provision of this regulation, or any section, subsection, subdivision, sentence, clause, phrase, word or portion thereof should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein.Authority: Sections 53, 54, 55, 59, 95, 98, 98.8, 1193.5, and 1198.4, Labor Code.Reference: Sections 226.7 and 512, Labor Code

Question Begging on Prop 64

No matter how much $500 per hour verbiage I read, I still can't see how Prop. 64 is retroactive under the law. Especially the argument about it "not affecting substantive rights" is thoroughly question begging.* That means, in logical terms that you assume the truth of the conclusion to prove the question.

If you agree that the non-harmed Plaintiff did not have a substantive right under the UCL, then clearly, no rights were affected. But to believe that, you have to accept that contention. I disagree, and I don't think it's much of a matter of opinion.

Before Prop. 64 I personally possessed the right to enforce laws under the UCL. Now I do not. End of question.

If you live in a defense-bar echo chamber (which I try to avoid being in) then, sure, those people never had real "rights" anyway, so of course nothing is affected. I could speculate that this stems largely from these BigLaw power lawyers farming this research out to junior associates who have Article III standing fresh on the brain and can't grasp the fact that it doesn't apply in California.

But you have to beg the question of there being no right to make this argument work. That's not to say that plenty of results oriented judges out there won't disagree, but this is more a matter of logic than of fact. It's a shitty argument and they should be embarrassed making it.

I'll continue to review the other arguments. E-mail me if you think you can win me over.

(Editorial Note: Once again, I am not making any comment on the propriety of the UCL or Prop. 64)

P.S. Snaps and props to The UCL Practitioner for being more than on top of this from day one. What an excellent resource!

* Smile. This may be the only time this year you read this term in its correct definition and not as sloppy shorthand for "poses the question" or "leads one to ask."

Guv Tries to Terminate Lunch Breaks

Or at least flex their scheduling. The Contra Costa Times reports.

The regulations would give employees leeway to schedule a lunch during the sixth hour of work. Companies could help meet the lunch requirement if "the employer informs an employee of the circumstances under which the employee is entitled to a meal period and the employee acknowledges in writing that he or she understands those rights." * * *The new rules would also reduce the time period in which a worker could file a legal complaint from three years to one.

The nurse labor issue in Fresno continues, the Fresno Bee reports.

Lujan v. Minagar etc.

Lujan v. Minagar - Firing someone because you think they're about to report you violates Labor Code Sec. 6310, which prohibits termination of employee in retaliation for reporting violations of Occupational Safety and Health Act.

Lonicki v. Sutter Health Central - Employee who was performing nearly identical duties for two employers but claimed to be unable to continue doing so due to medical condition could not take California Family Rights Act leave from one position and not the other. Where sole documentation of purported medical condition was note from family nurse practitioner saying employee would be out of work until a specified date for "medical reasons," employee did not provide satisfactory evidence of "qualifying medical condition," and employer was not required to invoke "three-opinion" procedure as a prerequisite to litigating CalFRA claim.

TA strike at Cal State

Academic student employees at the 23 California State University campuses will stage a one-day strike today over unresolved labor issues.

The Chronicle reports. The NLRB's recent ruling in NYU. does not apply to state employees.

New Legislative Session

Some early bills of note:

AB 57: would provide employers some flexibility about when they pay elements of prevailing wages.

AB 48: another legislative minimum wage hike. It's called a bill, but looks more like a resolution to me. Does anyone know the difference?

Job Numbers

Non-farm payrolls were up only 112,000 in November, after a (revised) 303,000 new jobs were added in October. Unemployment sunk to 5.4%, while the average work week was down 0.1 hours and the average hourly earnings were up 0.1%.

The market probably won't like this. They were thinking there would be about 200,000 and were about ready to feel relief on lowering oil prices. Probably more of an effect on bonds, which is freaking out right now.

I'm still trying to get ahold of good statistics, but for employers I think this means you will see more post-term charges and complaints. . .

Prop 72 Wins?

[UPDATE: Via California Insider: Glitch fixed; alarm over. Prop. 72 still loses.]

According to the LA Times, Prop. 72 may have made a late comeback. If you've already flushed that one, it's the one that requires employers with more than 50 employees to provide health care benefits.

Though this may be due to an error, it isn't clear. We'll know more soon.