1. Make sure employees are taking meal and rest breaks (continued)
Employers need policies and timekeeping records that demonstrate that an uninterrupted 30 minute meal period was provided no later than the end of the fifth hour of work. Require all employees to record the start and end of their meal and rest breaks on their time sheets or other time records. Inform employees that failure to record breaks will result in disciplinary action and do not permit working “off-the-clock.” It is strongly recommended to have employees sign their time records and verify that they have reported all time worked and that they understand that off-the-clock work is not permitted. A preprinted statement on time records can be printed as a footer with this representation.
One way to ensure such is to pre-print the following statement upon on all timecards, “I hereby certify that [insert employer name] has made a 30 minute meal period available to me and that I have been afforded the opportunity to take such period free from [insert employer name] control for the above pay period.”
During meal periods California employers must relieve the employee of all duty, relinquish control over the employee’s activities, and permit the employee a reasonable opportunity to take an uninterrupted 30-minute break, and not impede or discourage the employee from taking the meal period. Provide the meal period to the employee no later than the end of the employee’s fifth hour of work. Only employees who work more than five (5) hours in a day must be provided a meal period. If an employee works more than ten hours in a day, the second meal break must be provided no later than the end of the employee’s 10th hour of work.
New for 2014: A recent Supreme Court decision has clarified the employers obligation, namely, that the employer’s must make the meal period available and afford the opportunity to take such period. An employer must clearly communication to employees that the employer has the obligation to provide meal and rest breaks.
There still will be the problem of an employee simply asserting that they did not take or were not allowed to take their meal period. An employer still must show that the opportunity was afforded to take the break and it will come down to an employers’ word against the employee’s word. Employers still have a duty to record their employees’ meal breaks.
An employer must pay one additional hour of pay at the regular rate to the employee as a penalty for each workday the employer does not provide the meal break. Additionally, it is a misdemeanor to not allow the lunch break.
Tamara Harper, Esq. has prepared a “Meal Break Checklist for Employers,” which identifies the steps employers should take to ensure compliance with California Labor Codes regarding meal breaks. This Meal Break Checklist will be provided to you at no charge by sending an email to Tamara L. Harper and requesting such.
You cannot rely upon an outsourcing payroll company to ensure your compliance. Not only do their contracts contain disclaimers that they are not able to give you legal advice, they will not defend you in a lawsuit, and most importantly, they will not be the employer named in a lawsuit nor audited by the Department of Labor or Department of Labor Standards Enforcement. You must take your own action to ensure that your company and your assets are protected from liability.
2. How to effectively handle a termination (continued)
Once you decide to terminate, you must pay special attention to the actual termination process Tamara L. Harper has written an article entitled, “Effectively Terminating an Employee,” that outlines seven steps employers should follow and the five required handouts you must give to an employee upon termination. This article will be provided to you at no charge by sending an email to Tamara L. Harper and requesting such.
If you are not clear about the timing of payroll and terminations, whether voluntary, or involuntary, and what needs to be paid such as vacation pay, and what can or cannot be deducted, you should consult labor/ employment counsel.
3. Handling Sexual Harassment Complaints (Continued)
Failure to fully investigate puts you at risk. Consult employment counsel before deciding to not investigate. Conduct the required annual training of supervisors for sexual harassment prevention and keep evidence of attendance in the form of written records. Consult your employment counsel for details.
4. Correctly Classify Sales People- Exempt vs. non-exempt (Continued)
Under California Labor law, for an employee to be exempt as a manager s/he must:
1. Have primary duties and responsibilities that involve the management of the enterprise.
2. Customarily and regularly direct the work of two or more other employees.
3. Have the authority to hire or fire other employees or make suggestions, which will be given particular weight, about personnel decisions regarding other employees.
4. Customarily and regularly exercise discretionary power.
5. Spend more than 50 percent of his or her time engaged in managerial duties that meet the tests in the items above, and
6. Earn a monthly salary equivalent to at least two times the state minimum wage for full-time employment.
An employer cannot just call a position exempt or give an employee an exempt “sounding” job title. In order for the position to be truly exempt, several criteria as set forth by California law must be met.
This area has high potential for employer liability. Remember, just because every other employer in your industry “does it,” does not mean that they will not be sued or audited, and it is your liability and your assets. Is it worth it to protect your assets? Consult your employment counsel before paying an employee as an exempt individual.
Tamara L. Harper, Esq. Navigating entrepreneurs, inventors, individuals, and small to mid-size companies in the e-commerce, retail, green energy, real estate, bio-tech, restaurant, and service industries to safe harbors through the maze of employment regulations, corporate compliance, real estate and civil litigation, trademark registration and defense, business sale or acquisition, investor capitalization, asset protection, legacy and estate planning and trust administration. “Navigating and charting a map of the waters and currents you need to sail to bring you safely home to your particular harbor.” The materials and information contained on this website are provided for GENERAL INFORMATION PURPOSES ONLY. The material should not be construed and is not intended as legal advice on any subject matter and is NOT A SUBSTITUTE FOR PROFESSIONAL LEGAL COUNSELING from a qualified licensed attorney from the appropriate jurisdiction. IT IS NOT INTENDED, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP and no attorney-client relationship is formed unless agreed to in writing. In the event this communication is not in conformity with the regulations of any state, we are not willing to accept representation based on this communication. The content of this website is for advertising purposes, comes as-is and its accuracy, completeness, or applicability is not guaranteed. Tamara L. Harper expressly disclaims all liability in respect to actions taken or note taken based on any or all of the contents of this site.
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