Episode 222 - Recent Labor Law Helpline Questions

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. We are back today with a popular feature on the show where we discuss real questions from our members that we receive on the Cal Chamber Labor Law Helpline. In addition to providing invaluable resource to our members where they may discuss a broad range of employment law related issues with an employment law expert, the Labor Law Helpline really helps us at the Chamber see what current issues members are facing today. So to address some of these hot and on occasion unusual topics, we welcome back two guests to the show. First, we say hello to Vanessa Green, Cal Chambers, excellent employment law subject matter expert. Thanks for joining me today. Vanessa.

Thanks Matt. I appreciate the opportunity to be here with you today.

Excellent. And next we are pleased to be joined by Erica Barbara, Cal Chambers, amazing Senior Employment Law Council. Thank you for being here. Erica.

Hi Matt. Thanks for having me.

All right, well now in addition to both of you being excellent presenters and trainers, you each spend time on the helpline which I know gives you each great one on one discussions with employers about all types of employment issues. So I really couldn't think of a better pair to bring onto the show for this purpose. Vanessa, let's start with you about one of our most frequently discussed topics, Meal and rest breaks. Now, meal and rest break issues with non exempt employees continue to vex employers as always. And this question that I'm about to read off to you is a frequent flier on the helpline in VAR forms. But here goes. Some of our employees want to skip their meal break so they can leave 30 minutes early. If we have them sign something saying it's their choice, is that good enough? Vanessa?

You know, it's probably not good enough, Matt. So just a quick reminder to everyone that in California, employers are required to provide a 30 minute uninterrupted off duty meal break for their non exempt employees who work more than five hours. And I understand that in this situation the employee wants to waive their meal break. However, California law only allows a meal break waiver under certain circumstances. So in one circumstance it can be waived voluntarily by the employee if they work no more than six hours. The other circumstance is that they could waive their second meal break if they work more than 10 hours, but no more than 12 hours and if they took their first meal break. So those are very limited circumstances here. And again, it does have to be under these circumstances voluntarily agreed to by the employee. So if these conditions are not met, then we shouldn't be waiving the meal break. Right. Because we don't have anything in the law that allows us to do it outside of those certain circumstances, even if the employee wants to, Even if the employee says, I'll sign something saying I want to. So the best practice, really, instead of trying to work around these rules, I would recommend that employers try and work within them. So try and adjust the employee's schedule so that maybe they can still leave early, but also make sure that they take those required breaks.

Okay. And, you know, sometimes here we're, as employers, we're trying to control that employees still want to do things the way that they want to do them, especially when it comes to meal and rest breaks. There's some confusion about how much employers can really control this. And so this related question that we get is we've got an employee who just keeps skipping their meal break even after we've talked to them about it. So do we really have to pay that premium pay every time they do that, that premium that we owe when there's a meal break violation?

So this question does come up a lot. And they don't necessarily have to pay the premium pay if they've met their legal obligation to provide the break. So let me explain what I mean by that. So in California, you know, employers are required to provide the break. You don't have to force employees to take their break, but providing the break, that really means that you've relieved the employee of all duty, you've given them the opportunity to take their break. You haven't discouraged them or prevented them from doing so. So if you've done all of those things and the employee just chooses to skip their meal break on their own, the then typically, you don't have to pay the premium payment, but you should document that this break was offered to them and that they chose not to take it. Right. Because if it ever comes to a dispute as to why they didn't take that break, those records that you have, that documentation can help protect you. And just one more thing to add on this. If an employee is repeatedly skipping their breaks, that could potentially become a liability. So you want to think about maybe taking corrective action, looking at disciplining them, trying to counsel them so that they are taking their proper breaks, you're not really meant in a way to control their lunch habits. It's more to reduce your risk as an employer and just really show that you're properly complying with the meal break requirements. In California, Excellent.

And meal and rest breaks are not really the only types of wage and hour questions we get on the helpline as we take all kinds, and I mean really all kinds. But Erica, one that you continue to see regularly has to do with paying wages for employee travel. More specifically, our hourly non exempt employees. So the question that we typically get around this is I have an hourly non exempt employee who will be traveling from, say, San Francisco to Los Angeles to attend a work conference. How do I handle the travel time, the meals, et cetera.

Yeah, so this really is a common question. We get this often. So when a non exempt or an hourly employee is traveling for work, we need to remember the general rule that those hourly employees must be paid for all hours that they work includes time that they're performing their job duties, but also time that they're under our control. So if we're requiring an employee to travel from San Francisco to Los Angeles to attend a work conference, all the time that they spend traveling is considered work time. So they need to track their hours. They need to track when their shift starts, when it ends. They need to be paid for all of the hours that they spend traveling that day, including overtime hours. And generally their workday is going to begin when their travel begins. And it's going to include the time that they spend spend waiting at the airport, traveling on the plane, and once they land, whatever time they spend traveling to their final destination. And depending on where they're traveling to, this can make for a very long day and overtime hours, but we have to make sure that all of that time is paid. So the employee also needs to take timely meal breaks and rest breaks during the travel day, the same as they would if they were working in the office. And then lastly, if the employee is incurring any expenses while they're traveling, such as the cost of the flight, ride, sharing, food, et cetera, any of that would also need to be reimbursed.

All right, excellent. Now, moving off of wage and hour issues, an issue that we get, not necessarily super common, but when it comes up, it's incredibly difficult for employers to navigate, involves religious beliefs and whether employers have a need to accommodate them. So, Erica, sticking with you, a question that we get fairly regularly is a newly hired employee just informed me that he cannot work on Saturdays because of quote, unquote, religious reasons. He did not disclose this during the interview. I already have one employee who cannot work Saturdays. So I need this employee to work. Can I tell him he has to work on Saturdays and if he can't, can I let him go?

So this can Be a frustrating experience for an employer. Right? You hire someone expecting that they're going to work a certain schedule, and then they tell you that they can't. But if the reason they can't has to do with religion, then we shouldn't be denying the request out of hand and we shouldn't terminate the employee because of the schedule conflict. And even if they didn't disclose it during the interview. Instead, we have to look at whether the schedule request could be a religious accommodation. So as an employer, we have an obligation to accommodate an employee's religious beliefs unless we can demonstrate that the accommodation is unreasonable because it would impose an undue hardship. So religious accommodations often take the form of a schedule change where an employee is unable to work on a certain day because of religious observances or services. And in this particular question, once the employee told the employer he couldn't work on Saturdays, the employer needed to engage in the interactive process to explore possible accommodations such as not working at all on a Saturday or maybe starting the shift later if what the employee needed was time to attend religious services in the morning. But just as with accommodations for disabilities, if the employer believes that an accommodation would be an undue hardship, the best practice is really to work with legal counsel before either denying an accommodation or terminating an employee who has made a request for accommodation.

All right, Vanessa, let's stay with the religious beliefs theme here because we have a really unusual call that you've received before, and that question was with some context behind it. Someone at our office is secretly placing tiny Jesus figurines all over the place, including on co workers desks. People have complained. How are we supposed to handle this now? Vanessa, is this a kind of religious accommodation issue?

Like what Erica discussed was a really unusual call, Matt. And just when you think you've heard it all, you get a call like this and you realize there's always something unique out there. No, this is not likely a religious accommodation. So religious accommodations, those really protect an employee's right to practice their sincerely held religious beliefs, not necessarily to impose those beliefs on other people, particularly if it's making others in the workplace feel uncomfortable. So placing religious symbols on a coworker's des and around the workplace, especially without permission, can cross a line if it's making other feel uncomfortable. It's really a workplace conduct issue. It's not necessarily an accommodation issue. So for employers who have a situation like this, you know, I would address it like any other inappropriate behavior in the workplace. We want to try and conduct an investigation to determine who is it that's leaving these figurines around the workplace, then if we can identify that employee, talk to them, explain the impact, and set clear expectations moving forward for what's appropriate and what is not appropriate conduct in the workplace.

Definitely a very interesting conversation once you get to the bottom of that investigation, right, Vanessa?

Absolutely.

All right. Sticking with accommodation issues and ones that are usually more prevalent for our employers in the workplace, we know that the law require reasonably accommodating an employee's disability to either help the employee perform their essential job duties or to give them time off to help them recover enough to then come back and perform those job duties. Kind of what Erica was alluding to earlier about religious accommodations. So, Vanessa, we commonly get asked, we've got an employee who keeps sending us updated doctor's notes, pushing out their return to work date. How long are we supposed to keep holding their job open? That kind of just Pandora's box question of when is enough?

You know, Matt, it really depends and it's so hard. These are such tricky situations for employers because you can't make blanket decisions with these situations. They have to be evaluated on a case by case basis. And so that's why I say it depends. So if the employee is covered by California's Fair Employment and Housing act, which applies if you have five or more employees, or by the ADA, which is if you have 15 or more employees, you may employer have to provide extended leave as a reasonable accommodation as long as it doesn't create an undue hardship on your business. So with this type of situation, there really is no magic cutoff date. The law requires you to go through what's called a good faith interactive process. And that's really just a fancy way of saying you need to engage with your employee, talk to them about accommodation options, get updated medical information from their doctor if that's needed, and then explore whether the continued leave is still reasonable or if there's maybe another accommodation that might work better. It's really an interactive process where we got to figure all of this out together for this particular situation. So if we do all this and we realize while this leave is really impacting our operations, we may want to look at is this causing us undue hardship? Right. But we don't want to skip the process. We don't want to make these quick turns termination decisions without really looking into all of the situation from a bigger picture. And that's where employers can sometimes get themselves into trouble. So if you're at that point employer, where you have a situation like this and you're thinking, we can't do this anymore. We do want to cut off and deny the leave and end this person's employment. I highly recommend talking to legal counsel. It's a really high bar in California showing undue hardship. So that's a tricky situation where you probably want that extra layer of support from legal counsel.

Yeah, I really agree with that last point. And something kind of highlight is, you know, as you talked about, there is a way to end this leave if it becomes unreasonable or an undue hardship. So we don't ever want to just think, well, every time they keep giving us a doctor's note over and over and over again, we just have to keep giving it to them. It is an ongoing process, and I think you've laid that out very well, Vanessa. All right, well, speaking of kind of termination questions, let's move on to discipline. Because, Erica, I know those can be some of the longest conversations we have on the helpline because there's so many factors that go into play. What's the conduct? What kind of discipline are you looking at? What are we really dealing with here? And it just feels tricky for employers in California these days because of the volume of employment related litigation. And employers just seem to be a little bit snake bitten about disciplining and terminating their employees. So it can even be a little bit more difficult when it's a supervisor we've entrusted to help advance the goals and objectives of our organization. But some supervisors and managers just have different management techniques, and for some it can be pretty negative. So a large question we get, or a question we get very frequently is, can I write up a manager for just being rude and disrespectful to the staff? Not necessarily based on a protected class. That's just their management style is that they are rude and disrespectful to their staff.

Yeah. So you absolutely can write up a supervisor for this type of bad behavior, and you should. So supervisors play a unique role in the workplace. In addition to performing their job duties and supervising employees, they're also setting the tone for the employees that they supervise and all the employees that they interact with. So if a supervisor is rude and disrespectful towards employees, they're sending a message to those employees that that kind of conduct is acceptable, which it's not. Now, the supervisor in question didn't appear to be engaging in harassment. He was apparently rude to everyone and wasn't singling anyone out based on a protected class. But his conduct was definitely inappropriate. It was bullying. It was Abusive, it likely violated the employer's harassment prevention policy and code of conduct. And it really needed to be addressed through discipline. In addition, if that kind of conduct is left unchecked, it could morph into harassment if the supervisor, for example, starts focusing his anger on a specific employee because of the employee's protected class. But the bottom line is we don't want to ignore inappropriate conduct in the workplace, whether it's by a supervisor or any employee, and we should address it through discipline as appropriate. So if it's a supervisor we're dealing with, we may also want to providing additional training to that supervisor to help empower them to manage their employees more efficiently and appropriately.

Great. And sometimes we know even with that regular discipline, the conduct isn't corrected, behaviors aren't changed, and we have to sometimes ultimately make that decision to let someone go as a final disciplinary measure. And, of course, that upsets people. Right. It's no fun to lose your job. It's no fun for someone to tell you, we don't want you anymore, essentially. And there's a very emotional component to it, one that I saw very frequently as a plaintiff's attorney. So it upsets them much that they come to me and they want to sue. And we're starting to see an increase in calls on this as the workforce is kind of morphing and influx a little bit with regards to people getting let go. And the first step to people suing is sending out this letter to their former employers. And the question that we get comes something like this. A former employee has sent us a letter asking for a copy of their personnel file and payroll records. Erica, do we have to even respond to that letter? They're no longer our employee.

Yeah. So the answer to this question, which often surprises employers, is actually yes, in California, all employees, both our current employees and former employees, have a right to inspect and receive copies of their personnel and payroll records. Now, a request for personnel records does have to be in writing, but once the employer receives the request, they only have 30 days to respond. So we've got a tight turnaround time here. And if they don't respond at all, or if they respond but they respond after the 30 days, they can face a $750 penalty for payroll records. The window to respond is even shorter. It's only 21 days. So if you don't respond by that deadline or at all, then you've got another $750 penalty. So it's important that whoever in the organization receives a request like this is aware of the requirement to respond and the timing that is necessary for the response. And I'll add that when these requests come from an attorney representing an employee, and sometimes you're going to these from the employee themselves, and sometimes you're going to get them from an attorney. If you get a request like this from an attorney on behalf of an employee, then it could signal the beginning of a potential legal claim. So your best practice is really to loop in your employment counsel for guidance on how to, how to move forward with it.

Yeah, that couldn't be more true. When I was writing that letter on behalf of my clients, I was coming with a claim. So, you know, this is just a good kind of heads up. Let's get our ducks in a row, get our counsel in place, get ready to defend against the claims as employers. All right, so let's close this episode with an interesting question we actually get from time to time. And I'd love both your takes on this, especially since you two are a pair of amazing live harassment prevention trainers. And here's the question. Generally, we had an employee who said they felt harassed by our company and the state of California because they had to take mandatory harassment prevention training on that basis. They refused to participate in the training going forward. What do we even do with that? Vanessa, we'll start with you.

That made me chuckle because, you know, you never know what's going to make somebody feel harassed. So with situations like this, here's the thing. So in California, employers have a duty to provide harassment prevention training to their employees, and employees need to complete this training. So it's not harassment per se, when employers are just following the law and having their employees complete this training as is required. Erica, I'm curious. You conduct these types of trainings all the time, just like I do. Have you seen any examples of like this type of situation coming up when you've been conducting a training?

Yeah, so I have actually seen this type of issue come up in harassment prevention trainings recently and specifically in regard to the kind of the interplay between legal protections around gender identity and gender expression and then employees religious beliefs. So for example, we may have an employee whose religion recognizes only two sexes, male and female, and they feel like they're being harassed because they're told in harassment prevention training that the law and company policy protects an employee's gender identity, which includes an employee's right to use the name and restroom that aligns with that gender identity. So when this type of an issue comes up, we have to explain to the employee that the law protects all employees from discrimination and harassment based on protected characteristics, which includes things like gender identity and another employee's religious beliefs. Cannot justify harassing someone because of such a protected class.

Yeah, very tricky questions and always highlights why it's a good idea to have a good qualified trainer in the room to kind of explain this because it has as the waters around this have been kind of muddied recently with change in presidential administrations and news reports. Vanessa and Erica, your knowledge and experience with these wide variety of issues is always a welcome conversation on the podcast. I think it provides a tremendous resource and a peace of mind for employers in California, especially when they get a hold of you on the helpline. Thank you each for joining me today.

Such a pleasure to be here. Thanks Matt.

Yeah, thanks Matt. One of the things I enjoy most about my job at the Chamber is being on the helpline and talking to our Happy to share some of the experiences that that we have doing that.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chambers podcast by visiting calchamber.

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