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Labor Law FAQs for California Meal Breaks, Vacation Pay & Mandatory
Rest Periods
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Am
I an independent
What
work time do I have to be compensated for?What
work time do I have to be compensated If
I receive tips on the job, do I
have to share them with my employer
or supervisor?
When
am I required to have rest and
meal periods on the job?
When
can my employer require that
I lose my vacation pay?
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Am I an independent
contractor or an employee and does it make a difference?
Whether a worker is an "employee" or
an "independent contractor"
makes a big difference. Independent contractors are not entitled
to many benefits that must be offered to employees, such as
overtime pay, health and pension benefits, social security
credits, protection against discrimination, and unemployment
insurance. Some employers wrongly classify their workers as "independent
contractors" to avoid providing those benefits. It is
in your best interest to know whether you are properly classified
as an employee or independent contractor.
Recently, there have been some noteworthy cases where employers
mistakenly classified employees as independent contractors.
The Allstate Insurance Company announced that it agreed to
pay $19.5 million to 292 agents who claimed the good hands
people wrongly changed their status from
"employees" to "independent contractors" .
This settlement came after Allstate settled the claims of another
1,000 agents for $22 million. In another case, Microsoft agreed
to pay $96.9 million to employees who contended that they were
not temporary, independent contractors but really permanent
employees of Microsoft.
Courts use different tests for workers for deciding different
issues, but there are some common principles. In wage and hour
cases, they focus on the following factors:
The degree of control
the employer exercises over the day-to-day work performed;
The amount of the
worker's investment in facilities and work equipment;
The degree to which
the worker's independent initiative, judgment and planning
is necessary for the success of the worker's operation;
The permanency of
the relationship between the employer and the worker;
The extent to which
the services are a part of the employer's business;
How dependent is the
worker on the employer for continued work.
The courts will look to all
the facts of a particular case and compare them to the appropriate
factors. Thus, the employees should understand that an agreement
that he or she is an independent contractor, though important,
will not decide the case.
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What work time do I have to be compensated for?
Employees must be paid their
wages for all of their work time. Work time is any time spent
engaged in work that benefits the employer in some way. This
includes work at home, opening and closing duties, pre-shift
and post-shift work, and anything that is considered "an
integral and indispensable" part of the employee's principal
work. For example, time spent sharpening knives by a butcher
is "an integral and indispensable" part of the
butcher's work.
An employee is at work all hours he or she is under their employer's
control and cannot engage in private pursuits. A worker who
has to wait until they have an assignment is working and must
be compensated. Likewise, if an employee is on-call and has
restrictions on the use of free time, then that employee should
be considered at work.
Even for unauthorized overtime,
an employee must be compensated. An employer cannot "accept
the fruits of the employees' labor" without paying their
employees. Therefore, policies such as "employees will
not be paid for unapproved overtime" will not win in
court.
Perhaps the worst violations
occur when supervisors urge their employees to clock out
and then continue work. Employers cannot escape liability
by refusing to keep records of their employee's "off-the-clock"
work. In such cases, the law allows the employee to use reasonable
estimates to reconstruct their work time.
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If I receive tips
on the job, do I have to share them with my employer
or supervisor?
In California, employers cannot
share in tips or tip pools of their employees. Sometimes
a supervisor or owner of a business takes a percentage or
a fee out of their employee's tips. Even though this is practiced
in restaurants, hotels, and casinos, this is strictly prohibited.
As in all other wage cases, an employee can recover attorney's
fees in an action to recover tips. |
Ca Meal Breaks: When
am I required to have rest and meal periods on the job?
California
law provides that employees must receive a 30
minute meal break if they work in excess of five
hours. During this time, the employee must be
relieved of all duties because it cannot be a
working lunch. If an employer fails to give a
proper meal break, the employee can recover one
hour of pay at their regular rate of pay for
each day they are not provided a proper meal
break.
There are exceptions to the rules regarding
meal breaks. A bona fide "exempt" employee
is not subject to this rule. If the work day
is less than six hours, the employee can agree
to waive the time period. In the health care
industry, an employee can agree, in writing,
to waive this meal period. Further, employees
working under a collective bargaining agreement
may not be subject to the rules regarding meal
periods.
In some cases, an
"on duty" meal break can be provided only when the
nature of the job prevents the employee from being relieved
of duty and if there is a written agreement between the employer
and employee. The written agreement shall state that the employee
may revoke the agreement at any time.
These rules only apply to employees
in California. Federal law does not have a meal time requirement.
California
labor law requires that employees get rest breaks
if they work over three and a half hours a day. These
mandatory breaks must be in the middle of each work
period and must be 10 minutes for every four hours
worked or fraction thereof. Rest breaks are work
time and the employee must be paid for them.
If an employer fails to provide an employee a rest
period, the employee can recover one hour of pay
for each work day that the rest period is not provided.
An exception to the rule is made for bona fide
"exempt" employees. They are not subject
to this rule. |
When can my employer
require that I lose my vacation pay?
The answer is usually never.
When a worker leaves his or her employment, all vested vacation
pay must be paid out at the final rate of pay in accordance
with the employer's vacation policies. Along these same lines,
an employer cannot have a
"use-it-or-lose-it" policy under which an employee
forfeits accrued vacation time if not used by an anniversary
date. On the other hand, an employer can cap or limit the amount
of vacation time accrued.
Some employers can skirt the strict California law on vacations
by establishing a funded vacation plan under the federal ERISA
laws. However, some of these employers do not have vacation
plans that comport with the requirements of ERISA, and therefore
they are in blatant violation of California law. Obviously,
an employee would need the assistance of an attorney to determine
the official ERISA status of an employer.
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