CA Supreme Court Clarifies Employers’ “Day of Rest” Obligations

Yesterday, the California Supreme Court answered some admittedly “unsettled questions” under California law regarding an employer’s obligation to provide a day of rest to employees under California’s day of rest statutes (codified at Labor Code §550-558.1.  These statutes prohibit an employer from “caus[ing] his employees to work more than six days in seven” (§552), but do not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” (§ 556).

The ambiguity of the statutes creates left many employers to wonder — what does it mean to “cause” an employee to work more than six days in seven?  Does it mean force, coerce, pressure, schedule, encourage, reward, permit, or something else entirely?  Similarly, what does a “week” mean?  Does it mean the employer’s pre-set work week or does it mean any rolling 7-day period?

In Mendoza v. Nordstrom, the California Supreme Court answered these long unsettled questions and held: 

(1) That a day of rest is guaranteed for each work week as defined by the employer.  Periods of more than six consecutive days of work that stretch across more than one work week (as defined by the employer) are not per se prohibited.

(2) The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the work week.  If on any one day in the work week an employee works more than six hours, a day of rest must be provided during that work week, subject to whatever other exceptions might apply.

(3) An employer “causes” its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  Thus, an employer is not forbidden from permitting or allowing an employee who has been fully apprised of the entitlement to choose not to take a day of rest.

(4) In addition, the Court ruled that employers must inform employees of their right to a day of rest.  In the Court’s words, “an employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”

As a result, California employers should update their employee handbooks to include language notifying employees of their day of rest rights.  Employers should also review their wage-and-hour policies to ensure that employees who work more than 5 days a week are not triggering day of rest liability for the employer, given these new standards.

Employers who violate California’s day of rest laws are liable for civil penalties of $200 per employee per pay period under the catch-all provisions of California’s Private Attorney General Act (“PAGA”), plus the payment of reasonable attorneys’ fees to the aggrieved employee.

You can read the Court’s full opinion in Mendoza v. Nordstrom here.

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Job Available — Family Law Associate Attorney (Pleasanton)

I have been exclusively retained by Ross Family Law, P.C. in Pleasanton, CA to recruit a new associate for their firm. This is a great opportunity to work on sophisticated, high asset family law cases in a relaxed and friendly environment…where dogs are welcome too! If you are interested in applying, or if you know someone who might be, please visit our LinkedIn job posting, which can be found here.

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Federal Court Rules that Title VII Protects Gays and Lesbians from Workplace Discrimination

For the first time ever, a federal appellate court has ruled that sexual orientation discrimination is a form of sex discrimination that is illegal under Title VII of the Civil Rights Act of 1964.  The decision in Hively v. Ivy Tech Community College came from the full 7th Circuit Court of Appeals in a 8-3 vote.

In reaching its decision, the 7th Circuit Court of Appeals overturned its own precedent.  Such an outcome was warranted, the Court said, because of the U.S. Supreme Court’s recent rulings on gay marriage and Title VII.  The Court found that a change of law was necessary now to avoid the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The 7th Circuit covers Illinois, Indiana, and Wisconsin.  Now, as a result of this case, it is illegal under federal law for employers in those states to discriminate against gay and lesbian applicants and employees.

Because the Hively decision creates a split among the federal appellate courts — some of which have reached the opposite conclusion — the issue is likely headed to the U.S. Supreme Court for a final decision that would apply nationwide.

You can read the court’s decision in Hively v. Ivy Tech Community College here.

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When Joking With Employees Leads to Bad Behavior

Recently, Harvard Business Review author Kai Chi Yam published an article entitled, “When Joking With Your Employees Leads to Bad Behavior.”  The author’s goal was to understand the impact that a leader’s jokes can have on the behaviors and actions of his/her employees.

After conducting lengthy research with workers in the United States and China, the author concluded that a leader’s use of humor can be a “mixed blessing.”  Although humor in the workplace is generally assumed to be a good thing — several studies have shown that humor in the workplace increases creativity and collaboration, makes workers more productive, and boosts status in the workplace — the author found that humor can produce a broad range of effects on organizational behavior.

On the positive side, humor can improve how team members view their social relationships with their team members.  This leads to better work engagement, among other things.  On the other hand, some forms of humor from a leaders — in particular aggressive humor — can serve as a powerful signal to employees that it’s okay to break the rules and engage in improper conduct.  The author concluded that humor still is and can be a very positive tool to employ in the workplace.  However, leaders need to be mindful of their status as role models because their behavior serves as a “social cue” for their employes.

You can read Kai Chi Yam’s article in the Harvard Business Review here.

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How to Hire the Right Person

Recently, Adam Bryant of the New York Times published an excellent article on hiring entitled, “The Hiring Manager’s Guide to Hiring the Right Person.”  In speaking with over 500 corporate leaders for his “Corner Office” series, Mr. Bryant asked each of them, “How do you hire?”  Those conversations are synthesized in this article, and the results are some of the smartest and best hiring strategy recommendations I’ve seen.

Here’s what Mr. Bryant says are the keys to successful hiring:

  1. Avoid doing a standard interview.  Instead, be creative and be challenging.
  2. Get away from your desk.  Instead, take the candidate out to lunch or on a tour of your office.  Engage in other social interaction to gauge how the candidate interacts with others.
  3. Throw some curveballs during the interview.  Don’t ask the usual questions everyone asks.
  4. Turn the tables and allow the candidate to ask questions of you and your company.  Use this to judge the candidate’s curiosity and preparedness.
  5. Get second and third opinions.  Have a candidate meet with several decision-makers within the firm so that your perceptions can either be confirmed or proven wrong.
  6. Push for diversity.  Hiring an innovative team starts with finding people who think differently.
  7. Assign some homework.  By giving a candidate a small task to complete at home, you can see them “in action” and assess their performance.
  8. Trust your instincts.  If you have a nagging concern about a candidate, chances are that concern will be magnified 100 times after you hire him/her.

I’ve been recruiting and hiring for clients for almost 15 years.  I agree with most of Mr. Bryant’s suggestions.  I would add a step at the beginning — that is, I would encourage employers to engage with candidates by email or telephone prior to inviting them in for an interview.  The goal is to avoid the person who wants any job at any firm; instead, you want to find the person who wants your particular job at your particular firm working in your particular culture and environment.  Explore this with candidates who express their interest before committing to bring them in for an interview.  I am always amazed at what I learn in these preliminary back-and-forth email exchanges and telephone conversations.

I also think that current economic conditions also need to be considered.  If the economy is doing well, and unemployment is low, you’ll see fewer qualified applicants searching and applying for openings.  As a result, you’ll likely end up needing to lure already-employed folks to come join your company.  That requires a change of strategy because, under these conditions, the employer needs to work harder to sell the candidate on its company, its culture, and the opportunity — and to convince the candidate to leave her existing job.

We have a very low unemployment rate now in the San Francisco Bay Area.  My clients are reporting that it’s very difficult to find good candidates to fill open positions.  For this reason, right now I would not give otherwise good candidates homework projects or subject them to writing assignments or other “tests” during the interview.  I think that is asking too much now in this market where the “sellers” — i.e., the candidates — have more power and more leverage.  So I would delete that from the list of recommendations, at least for right now.

You can read Mr. Bryant’s article in the New York Times here.

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