California Paid Family Leave Update

Last week, California's Governor signed into law AB 908, which established that, beginning January 1, 2018, it increases the wage replacement rate for employees receiving disability insurance and/or paid family leave benefits through the state. Effective January 2018, this amount will increase from the current 55% to 60 or 70% of the employee's compensation, depending on the employee's income level.  The new law will also eliminate the 7-day waiting period for receipt of paid family leave benefits.

San Francisco's Board of Supervisors passed an ordinance on April 5, 2016 that will require most San Francisco employers to start filling up the gap between an employee's paid family leave benefit and the employee’s regular compensation. It only applies to leave taken to spend time with a new child for whom the employee is eligible for and receiving paid family leave benefits through the state and is for up to 6 weeks. This ordinance will apply to employers with 50 or more employees effective January 1, 2017, to employers with 35 or more employees effective July 1, 2017, and to employers with 20 or more employees effective January 1, 2018.

Employees will be eligible for this paid leave benefit if (1) they have worked for the employer for at least 180 days; (2) they perform at least 8 hours of work per week in San Francisco; and (3) at least 40% of their total weekly hours are worked in San Francisco. The law establishes certain means for determining employee eligibility where an employee's work hours fluctuate as well as means for determining the amount of supplemental compensation to pay the employee where the employee's pay fluctuates.

Under this San Francisco ordinance, employers can require an employee to apply up to two weeks of accrued, unused vacation to help the employer meet its obligations. If the employee refuses to use vacation, then the employee is not eligible for any supplemental compensation from the employer.

The employee also must agree to reimburse the employer for the full amount of paid leave paid by the employer, if the employee voluntarily terminates employment within 90 days of the end of the leave.

The ordinance provides for both administrative enforcement and the initiation of private civil actions. A required notice will be made available for posting by January 1, 2017. Employers must keep records of supplemental compensation paid under the ordinance for 3 years.

Contact The Law Office of Alex Tovarian

If you need more information to determine whether you are eligible for the benefits of this new Ordinance, contact Alex Tovarian, employment attorney at Tovarian Law for a free consultation.

Meal & Rest Break​s in California

Meal and rest break policies continue to be the source of a myriad of litigation in the state of California. Understanding California's meal and rest break requirements are important for employees to protect their rights, and for employers to avoid unnecessary litigation. ​​​To comply with these rules, employers must do ​everything possible to communicate the legal requirements of California's employee break laws to nonexempt workers and provide them opportunities to take meal and rest breaks.

Brinker Meal and Rest Case Decided

In 2012, the California Supreme Court decided an important meal and rest break case, Brinker Restaurant Corp. v. Superior Court. ​The question of whether employers must ensure breaks are taken, or must simply provide breaks has been a source of significant litigation in both federal and state courts. ​The California Supreme Court ultimately ruled in Brinker's favor regarding the most critical part of the decision – holding that employers do not have to ensure that employees take meal breaks. Once a meal period is provided, there is no duty to enforce meal breaks and/or to ensure no work is being performed. The unanimous ruling is a victory for California employers, but it is not without potential pitfalls. Employers with vague meal and rest break policies may subject themselves to increased liability. The decision clarifies that meal and rest break issues are still subject to class-action lawsuits.

Meal Break Obligations in California

Employees cannot work for a period of more than five hours without employers providing an unpaid, off-duty meal period of at least 30 minutes. The first meal period must be provided no later than the end of the employee's fifth hour of work. The employer satisfies its legal obligation to provide an off-duty meal period to its employees if it:

1. Relieves its employees of all duty

2. Relinquishes control over their activities

3. Permits them a reasonable opportunity to take an uninterrupted, 30-minute break

4. Does not impede or discourage them from doing so

A meal break can be unpaid only if all of the above conditions are met. When the total work period is shorter than six hours, the meal period may be waived by mutual consent of the employer and the employee. ​

Second 30-Minute Meal Break

Employers must provide a second meal break of no fewer than 30 minutes for all workdays on which an employee works more than 10 hours. The second meal break must be provided no later than the end of an employee's 10th hour of work. An employee can waive the second meal period only if all of the following conditions are met:

1. Total hours worked on that day are not more than 12

2. Employers and employee mutually consent

3. The first meal break of the workday was not waived

On-Duty Meal Breaks

Employees can take on-duty meal periods only in certain, limited circumstances. An on-duty meal break must meet all of the following conditions:

1. Permitted only when the nature of the work prevents an employee from being relieved of all duty

2. Must be agreed to in writing by the employer and employee

3. Must be paid

An on-duty meal break can be revoked at any time in writing by the employee, except under Wage Order 1 4 (Agri​cultural Occupations)​It is recommended that employers consult with legal counsel before authorizing on-duty meal breaks. On-duty meal breaks have been upheld only in very limited circumstances. ​

10-Minute Rest Break Obligations

Employers must authorize and permit rest periods for all nonexempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of 10 minutes for every four hours worked, or a major fraction thereof. Any work performed over two hours is considered by the courts to be a "major fraction" of four. As a general rule, and insofar as practicable, the rest period must be in the middle of the four-hour work period. Though this is the general rule, there is no absolute obligation to permit a rest period before a meal period.

According to the California Supreme Court in Brinker:

"[s]horter or longer shifts and other factors that render such scheduling impracticable may alter this general rule." Employers are given some latitude as they may ‘deviate from that preferred course where practical considerations render it infeasible.’" Caution is recommended regarding departing from the general rule to provide rest breaks in the middle of each work period. Employers should consult with counsel if practical considerations unique to their industry appear to warrant a departure from the general rule.Employers must treat rest periods as hours worked and must pay rest periods as time worked. For the reason that employees receive compensation for rest breaks, they can be required to remain on the premises during their rest breaks.​

Consequences for Failing to Provide Meal and Rest Breaks

California employers can face costly consequences for violating work break laws. Court decisions have increased the potential for large financial fines for these violations.

Missed Meal Break

For each work day that employers fail to provide an employee a meal period as required, the employee is owed one additional hour of pay at the employee's regular rate. Employees have up to three years to claim unpaid wages.

Missed Rest Break

If either rest or meal break is not given, employers owe the employee(s) one hour of pay, which must be included in the following paycheck.

Missed Meal and Rest Breaks

There has been a great deal of discussion about the premium wage employers owe an employee who misses both a meal and a rest break in one day; whether it is one or two hours of pay because two violations technically occurred.In the case of United Parcel Service v. Superior Court of Los Angeles County, a California Court of Appeal ruled that there are two separate remedies because the premium wage requirement is contained in two separate sections of the Wage Orders.

Contact The Law Office of Alex Tovarian

Do not allow your employer to take advantage of you regarding meal and rest breaks claims. If you suspect your employer is violating the law regarding proper meal or rest breaks for you or any other employees at your company, contact Tovarian Law for a free case evaluation.

California’s Paid Sick Leave Act

California recently became only the second state to guarantee some annual paid sick leave for most full and part-time employees. Connecticut is the only other state to do so, having passed similar legislation in 2012, though it has modified the original law somewhat since then. With substantial bipartisan support in the Assembly and Senate, Governor Jerry Brown has announced he plans to sign the bill, called the “Healthy Workplaces, Healthy Families Act,” placing California in line with 10 other states that require employers to provide paid sick leave.

The bill would go into effect on July 1, 2015. It requires public and private employers to provide employees who work at least 30 or more days within one year of their hire date with sick leave “at the rate of not less than one hour per every 30 hours worked.” Salaried exempt workers are automatically deemed to work 40 hours per week. There are exemptions, however, for those employees with particular collective bargaining agreements, some construction workers, home healthcare workers and certain airline employees who are covered under the federal Railway Labor Act.

Other provisions of the bill include:

• Employers are to carry over unused sick leave from year to year.

• That paid sick leave may be limited to 24 hours or 3 days per year.

• There is no obligation by employers to allow accruals to exceed 48 hours or 6 days.

• Employers to provide written notice to employees of their paid sick leave rights on their itemized wage statement or in a separate notice on each pay period.

If an employer already has an existing paid sick leave policy with the same benefits as the bill, then it is not required to add this bill to it. There are some questions, however, over how some provisions are to be interpreted. For instance, what constitutes a day of work--8 hours or something else? Also, it is unclear by what is meant by “30 or more days?”

There are other provisions in the bill that may lead to confusion over its intent. For example:

• An employer voluntarily provides 12 paid time off (PTO) days per year at the start of the calendar year. If the employee uses all 12 PTO days, does the employer have to ask if the PTO days were one of the sick leave reasons specified in Section 246.5 of the bill?

• What if the employee used some of the PTO for vacation time? Must the employer then be required to provide 3 carryover days?

Other states often look to California as a model for innovations or changes in social and other legislative acts and adopt similar policies in many cases. State agencies need to review these provisions and to offer California employers clarification. While the bill appears simpler than the Connecticut law in some respects, let us hope that California’s employers not wait 3 years as they did in Connecticut for these agencies to act.

Worked to Death?

Can an employee die from too much work?” It seems inconceivable that such a scenario could take place in America today unless it involved undocumented aliens who were being forced to work in sweatshops by exploitative employers or risk being turned over to immigration authorities and deported.

But, according to the family of a nurse who was killed in a single-car accident while driving home from work, being “worked to death” was essentially what led to the death of their loved one.

On March 16, 2014, Beth Jasper had just finished a 12-hour shift as a nurse at the Jewish Hospital in Cincinnati, Ohio and was driving home. Before she left the hospital that evening, Ms. Jasper had allegedly told coworkers that she was “really stressed” and “hadn’t eaten.” On her way home, her car veered of the roadway, jumped an embankment and hit a tree. A lawsuit filed by her grieving family alleges she fell asleep and that fatigue from her excessive work schedule was the primary factor that contributed to her fatal accident.

The family’s lawsuit contends that because the hospital was routinely understaffed, Ms. Jasper had to work additional shifts and often worked through rest breaks. Because she was one of the few nurses who was qualified to operate the dialysis machine critical to patient care, Ms. Jasper was regularly called into work despite being off-duty. The wrongful death suit also alleges that Ms. Jasper’s supervisor had expressed to the hospital administrators concerns about her specific situation and the hospital’s chronic under-staffing conditions, which the hospital chose to ignore or disregard.

Although under-staffing at hospitals is not uncommon and is widely recognized as an industry wide problem, the family’s complaint contends that the under-staffing conditions could have been alleviated by implementing safe staffing ratios.

What is the Duty of an Employer in this Situation?

Employers have a legal duty to provide safe working conditions to employees, but does their duty extend to situations when the employee leaves the workplace? Few if any courts would rule that employers retain any responsibility for their employee’s conduct once they leave the workplace since they no longer have control or authority over them. Employees should be responsible for their own behavior for personal decisions made outside of work. The argument is that employees like Ms. Jasper are responsible for knowing whether they are too tired to drive and should have sought an alternative to driving alone.

On the other hand, courts have held that employers are responsible where an accident was foreseeable and they took no action to prevent injury or illness--i.e., whether the hospital knew Ms. Jasper was too tired to drive and failed to intervene. However, before legal liability can be found, there must be a direct link between the employment and the injury without any intervening or superseding events or factors.

So is it foreseeable that an employee who is regularly forced to work long hours, through rest breaks and during off-days or hours, can become so routinely fatigued that she would inevitably fall asleep while driving a car home from work? Did the hospital’s practices create an unsafe work environment that led to Ms. Jasper’s fatigued condition and was it foreseeable she would drive home in such a condition?

The Importance of Reducing Stress in the Workplace

Regardless of the lawsuit’s outcome, this case underscores the importance to employers of monitoring workplace conditions and implementing policies to prevent undue stress, illness and injury. In any situation where an aspect of employment is causing problems for employees, employers should strive to determine if the problem can be addressed and remedied. In Ms. Jasper’s case, the hospital was aware of its understaffed problem and could have implemented policies prohibiting mandatory overtime and excessive workloads, routinely monitored staff work hours and used flexible scheduling when possible.

By showing concern for employee safety and identifying sources of workplace stress, the employer can improve employee morale and increase productivity.

Nanette Bentley, a spokesperson for Mercy Health Group in Cincinnati, expressed sympathy for the family but declined to comment on the pending litigation.

Castillo, a union representative, stated that “safe staffing ratios” of nurses to patients remain largely unregulated in the US. He added that California is the only state with safe staffing ratio laws. Since its passage in 2004, the California law requires nurses on general or surgical floors to care for no more than five patients at a time and nurses in intensive care units to care for no more than two.

Contact Tovarian Law

If you know or suspect that your employer is not providing you a safe working environment, or should your employer not be offering or providing you with regular meal and rest periods, it is possible that your rights are being violated.

Tovarian Law is a Bay Area employment law firm who represents the rights of employees in meal and rest break cases, wage and hour violations, rest period violations and other employment law issues. Contact us today for an evaluation of your employment law case.