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Employers to Get Increased Protection When They Answer Reference Requests

July 2, 2018 By Israel Samuels LLP Leave a Comment

This month the Governor signed into law Assembly Bill 2770. This new law, set to take effect January 1, 2019, provides an employer with protection should the employer provide an employment reference. Under the new law, employers are protected from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim.

In order for the employer to be protected when it advises a prospective employer of a sexual harassment claim against its former employee, the claim must be based on “credible evidence” and have been made “without malice.” Currently, employers are protected from non-malicious references with respect to job performance or qualifications and existing law authorizes an employer to advise whether or not it would rehire the employee.

The Legislature and Governor believe many employers would not use their privilege to speak out against sexual harassers in the workplace primarily due to fear of a defamation lawsuit or tortious interference with a business opportunity claim and believe the failure to give a truthful reference creates a system where alleged gets to move on and become some other employer’s problem. The new law was passed with the hope it will open the line of communication between former and prospective employers when it comes to the employee’s performance and policy violations.

If you are unsure how to respond to a request for a reference for a former troublesome employee, you should contact your legal counsel before you say anything to the party seeking the reference.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Restaurant Liability for Black Widow Spider Bites

June 25, 2018 By Israel Samuels LLP Leave a Comment

Imagine you are at a lovely restaurant, sitting at one of their bucolic patio tables having lunch. As you eat your lunch a black widow spider crawls up your back and bites you so bad that you are hospitalized with numbness and weakness in your extremities due to
damage to the myelin sheath around your thoracic spine thereby affecting the conduction of signals to your feet, legs, arms and hands. Can you maintain a lawsuit against the restaurant claiming that the restaurant had a duty of care to protect patrons from foreseeable black widow spider bites?

The California Court of Appeals for the Fourth Appellate District on June 15, 2018, in its opinion in Coyle v. Historic Mission Inn Corporation says you can maintain such an action against a restaurant. The Court explained:

A restaurant owner would reasonably foresee that there would be a risk of a patron being bitten if a restaurant owner did nothing concerning spiders other than record their presence—not providing warnings, not hiring an exterminator, etc. Thus, the risk that a black widow spider would come into contact with a patron is sufficiently likely that a reasonably thoughtful restaurant owner would take the risk into account when operating a restaurant.

The Court, in reversing summary judgment in favor of the restaurant, held it was up to a jury to decide whether the restaurant took reasonable care and what reasonable care means under the circumstances.

The Court concluded a restaurant has a duty to exercise reasonable care in relation to black widow spiders that pose a risk of injury to patrons on its premises. It then provided Plaintiff with a blueprint for what she must prove:

. . . that (1) a reasonable person would have (a) warned patrons about the risk of black widow spiders at the property, or (b) put pest control measures in place for black widow spiders, such as pesticide being sprayed; (2) the Mission Inn did nothing with
respect to black widow spiders, reflecting breach; (3) Coyle was bitten by a black widow spider at the Mission Inn, reflect in causation; and (4) Coyle suffered pain and incurred medical expenses as a result of the spider bite, reflecting damages.

If you own a restaurant you must use reasonable care to assure your patrons are not injured on your premises. Consult with qualified legal counsel to determine what you should do if you find a bug infestation on the premises. You want a patron to eat at your restaurant not end up owning part of it.

Employee May Seek Remedies for All Employees Even If Not Affected by Employer’s Violation

June 18, 2018 By Israel Samuels LLP Leave a Comment

On May 23, 2018, the California Court of Appeals for the Sixth Appellate District in Huff v. Securitas Security Services USA, Inc. held that the Private Attorneys General Act of 2004 (PAGA) allows “an ‘aggrieved employee’ ––a person affected by at least one Labor Code violation committed by an employer––to pursue penalties for all the Labor Code violations committed by that employer.”

In Huff, Plaintiff was a security guard who sued his employer on his behalf and on behalf of other employees under PAGA for “numerous Labor Code violations” including failure to immediately pay wages upon termination of employment; failure to pay temporary service workers wages weekly; failure to pay wages within 72 hours of resignation; and failure to pay all wages due for work performed in a pay period. Huff was not a temporary services employee and thus, in the first phase of a bifurcated trial, the trial court granted Securitas’ motion for judgment on the grounds that Huff was not affected by Securitas’ violation of the obligation to pay temporary service workers wages weekly and, therefore, had no standing to seek PAGA remedies for others affected by the
violation.

Huff moved for a new trial and the Court granted the motion since it believed it made an error in law by precluding Huff from seeking remedies for other employees even though he had not been affected by the violation. The trial concluded Huff could pursue the representative PAGA action even if he was not directly affected by a violation so long as he was affected by at least one Labor Code violation.

Securitas appealed from the order granting Huff a new trial and the Appellate Court affirmed the new trial order. So long as an employee is affected by one violation of the Labor Code by his or her employer, that employee can maintain a PAGA action to redress other employer Labor Code violations even if those violations do not affect the employee who brought the action.

Now, more than ever, employers must strictly comply with the minute details of the California Labor Code. Constant scrutiny should be given to all employer labor practices and we recommend that employers consult legal counsel to make sure they proactively address all human resource, payroll and employee rights issues.

Prospective Employer Can Be Liable for Thwarting Pregnant Women from Applying for A Job

June 11, 2018 By Israel Samuels LLP Leave a Comment

In late May 2018, the California Court of Appeals for the First Appellate District in Abed v. Western Dental Services, Inc., concluded a potential employer can be held liable under the California Fair Employment and Housing Act (FEHA) for thwarting pregnant employment candidates from applying for jobs.

In Abed, the plaintiff sued Western Dental Services, Inc. (Western Dental) claiming she was denied a job because she was pregnant even though she never submitted a job application. According to Plaintiff she did not bother submitting an application because Western Dental allegedly falsely told her no job was available. The trial court dismissed the case on a motion for summary judgment in the prospective employer’s favor since Plaintiff had not submitted an employment application to Western Dental. However,
the Court of Appeals reversed the trial court’s decision.

The Appellate Court found that there were triable issues of fact as to whether Western Dental intentionally discriminated against plaintiff by falsely telling her that no position was available and, thus, violated FEHA.

The Appellate Court indicated that the plaintiff has the initial burden of producing evidence that establishes a prima facie case and must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought, (3) he [or she] suffered an adverse employment action, such as denial of an available job, and (4) some other circumstance suggests discriminatory motive such as the position remained open and the employer continued to solicit applications for it.

If the plaintiff establishes a prima facie case, creating a presumption of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the challenged action. It pointed out that, in most cases alleging a failure to hire for discriminatory reasons, the prima facie case includes as an element a showing that the plaintiff applied for the job. The Appellate Court held, however, that the plaintiff need not establish any particular element so long as he or she ultimately presents enough evidence to support an inference that an employment decision was discriminatory.

Based on the facts in Abed the Appellate Court reversed and remanded the matter back to the trial court finding that Abed had presented enough evidence to entitle her to a trial on her FEHA pregnancy discrimination claim but recognized “that this case involves many disputed factual issues, and a jury may eventually agree with Western Dental that it did not intentionally discriminate against Abed.”

Whether or not Western Dental ultimately prevails it could have entirely avoided this litigation if it had proper procedures in place to never advise that a position is no longer available and always accept employment applications. To assure your business has the proper rules and protocols in place for dealing with and vetting prospective employees, have them reviewed by your attorney and HR consultant and assure that your hiring staff is well trained in the murky legal area of what can and cannot be said to a prospective job applicant.

Sexual Harassment Is A Top Of Mind Issue In The California Legislature

June 4, 2018 By Israel Samuels LLP Leave a Comment

With #MeToo hitting Hollywood and politicians, California legislators continue to consider wide ranging anti-sexual harassment laws. The Senate and Assembly had until June 1, 2018, to pass bills introduced in their respective houses to the other house. Here are some of the bills addressing sexual harassment that made the cut and that may ultimately become law:

AB 1761: This bill would require panic buttons for hotel workers that work alone in guest rooms to be used if the worker believes there is an ongoing crime, harassment, or other emergency that happens in their presence. The bill also requires a notice on the door of each room informing guests of the panic button. Violations of the law, as presently drafted, could result in a $100/day penalty, up to a $1,000, for each violation of its provisions.

AB 1867: AB 1867 would require employers with 50 or more employees to retain records of all internal employment sexual harassment complaints for ten years and gives the Department of Fair Housing and Employment (DFEH) the ability to compel employer compliance.

SB 224: This bill extends liability for sexual harassment claims where a professional relationship exists between the complainant and an elected official, lobbyist, director or producer. The proposed law is a direct reaction to #MeToo scandals.

SB 1300: This bill would define the elements a complainant must prove if the complainant’s discrimination and harassment claim is that the employer failed to take all reasonable steps necessary to prevent discrimination and harassment. Under the proposed law the complainant would be required to prove (1) the employer new the conduct was unwelcome; (2) the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive; and (3) the employer failed to take all reasonable steps to prevent the same or similar conduct from recurring. The Senate Bill would also prohibit employers from requiring a release of claims or rights under Fair Employment and Housing Act (FEHA), or a nondisclosure agreement or other agreement not to disclose unlawful acts in the workplace, in exchange for a raise or a bonus or as a condition of employment or continued employment. In addition, employers with five or more employees would have to provide two hours of sexual harassment prevention training, including bystander intervention training, within six months of hire and every two years thereafter to all California employees—not just supervisors. Finally, the proposal would prohibit a prevailing defendant from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so.

AB 1870: This bill extends the time an employee has to file an administrative charge with the DFEH alleging an unlawful practice under the FEHA, including allegations of sexual harassment, from one year to three years from the alleged violation.

AB 3081: This bill extends Labor Code prohibitions on discrimination against employees who are victims of domestic violence, sexual assault, or stalking to include employees who are victims of sexual harassment, as well as employees who take time off to assist a family member who is a victim of domestic violence, sexual assault, sexual harassment or stalking; creates a rebuttable presumption of unlawful retaliation against an employee if any adverse job action occurs within 90 days of reporting sexual harassment, participating in an investigation, or similar acts; increases the time an employee has to file a complaint with the Department of Labor Standards Enforcement (DLSE) for violation of Labor Code section 230 (provides protected time off for jury duty
and victims) from one year to three years; requires employers, at the time of hiring and regularly on an annual basis thereafter, to provide to each employee a written notice that includes prescribed information about sexual harassment; and requires employers with 25 or more employees to provide sexual harassment prevention training to all nonsupervisory employees at the time of hire and once every two years thereafter. The bill also requires the Labor Commissioner to create a means for employees to report sexual harassment or assault that occurs in the workplace.

SB 1038: This Senate Bill would make an employee who intentionally retaliates against a person who has filed a complaint, testified, assisted in any proceeding, or opposed any prohibited practice, under FEHA, jointly and severally liable, regardless of whether the employer knew or should have known of that employee’s retaliatory conduct.

AB 2770 would include as “privileged” communications for: (1) complaints of sexual harassment made without malice by an employee to an employer based upon credible evidence; (2) communications between the employer and “interested persons” made without malice regarding the complaint; and (3) non-malicious statements made to prospective employers as to whether a decision to not rehire would be based on a determination that the former employee had engaged in sexual harassment.

SB 820:, Known as the “Stand Together Against Non-Disclosure” (STAND) Act, this proposal would make void as a matter of law and public policy provisions in settlement agreements, entered into on or after January 1, 2019, that prevent the disclosure of factual information related to cases involving sexual assault, sexual harassment, sex discrimination, and failure to prevent sex-based harassment and discrimination. The bill would, however, allow such a confidentiality provision to be included upon the request of the claimant unless the opposing party is a government agency or public official; and would allow a provision requiring the monetary settlement payment be kept confidential.

AB 3109: This Assembly Bill would make void and unenforceable a provision in a contract or settlement agreement, entered into on or after January 1, 2019 that: either (1) waives a party’s right to testify regarding an alleged criminal conduct or
sexual harassment by the other party to the contract or agreement in an administrative, legislative, or judicial proceeding; or (2) substantially restrains a party’s right to seek employment or reemployment in any lawful occupation or industry, unless the other party to the contract or agreement is the current or prior employer (except for public employers and a private employer that “so dominates the labor market” so as to effectively restrict the employee from being able to secure employment).

Sexual harassment in the workplace has become a major topic and is ripe for broad legislation. If you are an employer and do not have proper anti-sexual harassment policies and procedures in place, have not had a legal review of them in the past six months, or have not been proactive in preventing such complaints, it is time to consult with legal counsel. Employers must get on board now or face potentially strict and broad liability and penalties for non-compliance.

That’s Usurious in California

May 28, 2018 By Israel Samuels LLP Leave a Comment

Usury widely differ from state to state. Under the California Constitution parties to contract for interest on a loan primarily for personal, family or household purposes may not charge an interest rate in excess 10% simple interest annually, on an unpaid balance. Absent a written agreement, the rate of interest upon a loan or of any money or goods or accounts after demand is limited to 7% simple annual interest.

Proceeds of a loan obtained primarily for the purchase or improvement of a home, are not considered a loan for personal, family or household purposes. For these loans, and any other loans not for personal, family or household purposes, the permissible interest rate is the greater of 10% or 5% over the amount charged by the Federal Reserve Bank of San Francisco on advances to member banks on the 25th day of the month before the loan, whichever is greater.

California usury laws do not apply to real estate brokers for loans secured by real estate, whether or not the brokers are acting in the capacity of a real estate broker when the loan is made. Most lending institutions – banks, credit unions, and finance companies – are not subject to the 10% interest limitation. There are statutory interest rate limits for some of these loans, but they are at a higher percentage rate.

Violation of the usury law prohibits the Lender from recovering any further interest and may also require disgorgement of previously paid interest. The Lender may also be liable for treble and punitive damages and a civil penalty of $2,500 per violation. A willful violation may be punishable by a fine of up to $10,000 and imprisonment for up to one year.

Should your business lend money and require repayment with interest, or charge interest on unpaid balances, talk with your attorney. Make sure, before you demand interest that your interest rate is enforceable and not usurious.

Does Your Business Need to Comply With GDPR?

May 21, 2018 By Israel Samuels LLP Leave a Comment

The General Data Protection Regulation (GDPR) went into effect on May 25, 2018. GDPR is a uniform data privacy law that applies to member states in the European Union (EU). So why should you be concerned if your business is not in one of the member states? The GDPR contains extraterritorial jurisdiction provisions designed to reach companies that are not based in the EU that process data of individuals in the EU and treats privacy as a fundamental human right. Its provisions will likely require companies subject to the law to create, or substantially overhaul, their privacy policies. Noncompliance can result in penalties up to 20 million Euros (approximately $24 million U.S. Dollars) or 4% of global turn-over, whichever is greater.

The GDPR covers any company that:

Has an establishment in the EU and processes personal data in the context of activities of that establishment, regardless of whether the processing occurs in the EU;
Does not have an establishment in the EU but processes personal data, and the processing relates to:

the offering of goods or services to those data subjects, irrespective of whether a payment is required, or
the monitoring of those as far as their behavior takes place in the EU.

Thus, most US companies with ecommerce sites, EU presence or track or monitor online activity and process personal data (not anonymous information) are subject to the obligations imposed under the GDPR, and those obligations are substantial.

The GDPR sets forth different obligations for “controllers” – companies that determine the purposes and means of the processing of personal data – and “processors” – companies that process personal data on behalf of controllers. Controllers must assure that they and their processors process data in compliance with the GDPR. Processors are responsible for assisting controllers in complying with the GDPR.

The six guiding principles under the Regulation are:

Personal data should be processed lawfully, fairly, and in a transparent manner;
Personal data should be collected for specified, explicit, and legitimate purposes;
Personal data should be kept accurate; inaccurate personal data should be erased or rectified without delay;
Personal data should be adequate, relevant and limited to what is necessary;
Personal data should be kept no longer than is necessary for the purposes for which it is processed; and
Personal data should be protected and securely processed through appropriate measures.

Two bases upon which most companies will rely for the processing of personal data are (1) consent of the individual and (2) legitimate interest of the company.

Clear notice of what is being processed and for what purpose is required to assure the consent of the individual is voluntary and knowing. Such consent will not be considered freely given if it is conditional upon consent to the processing of personal data that is not necessary to the performance of the contract between the company and the individual.

A company must have a legitimate interest in the processing of personal data, provided the interests and fundamental rights of individuals are not overridden, and it must take into consideration the reasonable expectations of the individuals based on their
relationship to the company. EU regulations already direct that certain operations, such as online behavioral or targeted advertising to be a legitimate interest.

The GDPR also requires the appointment of a Data Protection Officer (DPO) when (1) the core activities of the company consist of large-scale processing operations that require regular systematic monitoring of individuals, or (2) the core activities of the company consist of large scale processing of sensitive data or personal data related to criminal convictions and offenses. The DPO has specific core responsibilities set forth in the law and may be in-house or outsourced.

In light of the complexity of the GDPR are many practical steps and issues that a company subject to the law must consider and take that are far too complex for discussion in this newsletter. If you are concerned that the GDPR may apply to you immediately contact qualified legal counsel to help your business address compliance with this far-reaching EU regulation.

Corporate Formation Terminates Partnership Fiduciary Duties

May 14, 2018 By Israel Samuels LLP Leave a Comment

A California Court of Appeals in Eng v. Brown, et al. has held that formation of a corporation can terminate a predecessor partnership and partnership fiduciary duties.

In Eng, two real estate agents, Eng and Levy, decided to purchase the Tin Fish Gaslamp restaurant in San Diego. Eng claimed that the agreement was an oral partnership. Their offer was written and executed by B.L.E. Fish, whose shareholders were Eng, Levy and Brown. The corporation was incorporated the same month in which the offer was made.

A dispute arose over operation of the restaurant and Eng alleged that Brown and Levy breached an oral partnership agreement wherein they agreed to a 10% management fee and set compensation and breached their fiduciary duties by charging a 20% property management fee and paying themselves excessive compensation. Brown and Levy contended the formation of the corporation terminated the predecessor partnership and the associated partnership fiduciary duties.

The Court of Appeals, as well as the trial court agreed with Brown and Levy – the corporation terminated the predecessor partnership and the associated partnership fiduciary duties.

Before turning partnership into a corporation or LLC consult with legal counsel to assure that whatever agreements the partners may have had are incorporated into the governing documents, shareholders agreement or membership agreement. If you don’t the
transition may be fraught with unexpected and unintended consequences – and expensive litigation.

Your Supposed Independent Contractor Is Likely an Employee

May 7, 2018 By Israel Samuels LLP Leave a Comment

Misclassification of employees as independent contractors has been a large source of wage and hour litigation in California. However, the rules to determine whether a worker is truly an independent contractor have been nebulous. It has allowed many businesses to engage in a gig economy where they classify workers as independent contractors despite such workers engaging in the work of their employers or performing similar work to those workers the employer has classified as employees. Thus, companies such as Uber and Lyft, have been able to avoid classifying drivers as employees depriving the drivers of employment benefits and protections under wage, hour and work safety laws.

On April 30, 2018, the California Supreme Court in Dynamax Operations West, Inc. v. Superior Court changed the rules when it comes to designating a worker as an independent contractor. The Court adopted a three part “ABC” test to determine whether a worker is truly an independent contractor or an employee for the purpose of wage, hour and work safety laws. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
that the worker performs work that is outside the usual course of the hiring entity’s business; and
that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Under this test it is virtually impossible to support designation of a worker as an independent contractor if the worker performs work that is your business’ core work. Thus, stay at home seamstresses who make clothing for a clothing manufacturer are employees not independent contractors; bakers are employees of a bakery, not independent contractors; and, most likely (but, still to be determined on a case by case basis), Uber and Lyft drivers will be found to be employees, not independent contractors.

With this seismic change in the way California will classify workers an onslaught of employment litigation over misclassification can be expected and it is not without substantial risk to employers. In California, workers can bring PAGA claims for all similarly situated workers of the employer and, if successful, recover attorneys’ fees, substantial penalties and damages. In addition, the U.S. Department of Labor, California Departments of Industrial Relations and Labor Standards Enforcement are
expected to bring regulatory claims against employers who may misclassify workers with renewed vigor.

It is imperative that California employers re-evaluate their classification of workers and, in some cases, compensate misclassified workers for losses incurred due to misclassification. These new classification rules make it essential that businesses work with their legal counsel to rectify past misclassification and ensure that workers are not misclassified under the new rules.

Meal and Break Period Regulation Violations Often Lead to Expensive Employee Claims

April 26, 2018 By Israel Samuels LLP Leave a Comment

A question that arises quite often by employers is how and when to provide employees with meal and rest breaks. Violating these employee rights could lead to an expensive endeavor for the business owner.

Meal Periods
Under California law, employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for certain employees in the motion picture industry). Unless the employee is relieved of all duty during the entire thirty minute meal period and is free to leave the employer’s premises, the meal period is considered “on duty,” and must be counted as hours worked, and paid for at the employee’s regular rate of pay.

An “on duty” meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee there is an agreed on-the-job meal period.

The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a
remote site.

An employer is not required to ensure that no work is performed. However, an employer must do more than simply make a meal period “available.” In general, to satisfy its obligation to provide a meal period, an employer must actually relieve employees of all duty, relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please), and must not impede or discourage employees from taking their meal period. (For some employees in the health care industry minor exceptions exist as to the employee’s right to leave the employment premises during an off-duty meal period.) Employers may not undermine a formal policy of providing
meal periods by pressuring employees to perform their duties in ways that omit breaks, such as through scheduling policies that make taking breaks difficult.

In general, an employee who works for a work period of more than five hours must be provided a meal period no later than the end of the employee’s fifth hour of work. When an employee works for a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hour of work, although these rules are subject to certain waivers by mutual consent (and different rules apply to employees in the motion picture industry.)

An employer is not liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control. However, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). Also note employees are not permitted to work through meal periods so they may leave work early.

Rest Periods
In California rest periods are based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four-hour work period, or major fraction thereof. Anything more than two hours is considered a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods (an exception exists for certain employees of 24-hour residential care facilities who may have their rest period limited under certain
circumstances. There is also another exception for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who must be given additional interim rest periods during periods of actual rehearsal or shooting.)

Failure to provide an employee a rest period requires the employer to pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday.

California has become a battleground for wage and hour litigation. To avoid litigation every employer should be proactive. Work with an attorney to ensure your organization has a valid and effective written meal and rest period policy that addresses when meal/rest breaks are to be taken and what to do when a break isn’t taken. The written policy can make all the difference in defending a class action meal/rest period case.

Employers should also provide training for supervisors so that they understand and know how to enforce meal and rest breaks. Keep accurate time, meal and rest period records. California law imposes the duty on employers, not on their employees. A continuous, thorough review of these records is essential to ensure employees are taking and recording meal breaks before the end of the fifth hour. This is critical to the defense of wage, meal and rest break claims.

With the advent of the Private Attorney General Act (PAGA) employees can now bring claims on behalf of all similarly aggrieved employees and recover attorneys’ fees, penalties and damages for all such employees without having to bring a class action. Therefore, it is imperative that employers know the applicable rules and consult with legal counsel to assure they are being followed.