What are the Meal and Rest Break Requirements for California Employees?
Mar 24, 2023
| By Ottinger Employment Lawyers
| Read Time: 6 minutes
California Meal And Rest Break Requirements For Employees Although employees in California are protected by some of the strongest employment laws in the U.S., workers here also experience some of the highest rates of employer wage theft in the country. One of the most easily overlooked ways that employers steal from their workers? Violating their rights to meal and rest breaks. Cutting short required break times, pressuring or incentivizing employees to work through them, or making it impossible to even take a break in the first place — all of this is considered a form of illegal wage theft under California law. And it costs California workers an estimated $2 billion per year. In this blog post, we’ll break down what California’s labor law says about meal and rest periods. We will also go over what kinds of workers are and aren’t entitled to these breaks, and what actions you can take to get restitution when your right to a break is violated. If you have questions or would like to speak with an experienced California meal and rest break lawyer, please contact us today. When Are Workers Entitled To Meal Breaks In California? Under California law, a meal break is an unpaid, uninterrupted period of at least 30 minutes during which employees are totally free of their work duties. Employers are required to respect workers’ rights to these breaks — it’s illegal to discourage you from taking them or incentivize you for skipping them. In California, the timing of your meal breaks is determined by the number of hours you’ve worked in your shift. Nonexempt employees — workers paid hourly — are legally entitled to one 30-minute meal break for every five hours of work. According to the law, your break should technically come before the end of your fifth hour of work. So if you’re a dishwasher and your shift started at 12 p.m., the law says that you’re due a meal break before 5 p.m. Working more than 10 hours? You get a second 30-minute meal break sometime before you reach that tenth hour of work. Despite what its name implies, you’re not required to eat during your meal break. Employees can spend this time however they want — on meals, personal business, or even running errands. During this period, the law says you’re free from any work responsibilities and are entitled to come and go as you please from your place of work — for at least 30 minutes. There are some situations when workers may not be able to exercise as much freedom during their meal breaks due to the nature of their jobs. Employees who are on a shift alone, or in a remote location — like a nighttime security guard, or a lone worker at a coffee kiosk — can’t be totally relieved of their duties, as the law requires. In these cases, “on-duty” meal breaks can be allowed, as long as both the employee and employer agree to them in advance and in writing. Workers must be allowed to revoke their agreement at any time. They also must be paid for their break time according to their regular rate of pay. Another special case is when employees are required by their jobs to stay on-site but can be fully relieved from their duties for meal breaks. In these situations, workers are also entitled to be paid for their 30-minute breaks, as well as access to a sheltered place where they can prepare and consume hot food or drink. Want to skip your meal break? That’s fine, as long as you’re working a shift that’s no longer than six hours, and both you and your boss consent to it. Your waiver doesn’t have to be formalized in writing — a verbal agreement is fine. If your shift is longer than 10 hours (but no more than 12), you can technically waive your right to the second meal break, as long as you take your first one. Waiving both breaks in one workday is prohibited. Also, be aware: Opting out of your meal break doesn’t necessarily mean you’re allowed to leave work any earlier. In California, the majority of workers who are covered by meal break protections are nonexempt or hourly workers. But many exempt or salaried employees who work in certain professions and meet minimum earning requirements must also receive them. When Are Workers Entitled To Rest Breaks In California? In California, in addition to meal breaks, some workers are also entitled to rest breaks: one 10-minute break for every four hours of work. California law recommends that employers give these breaks as close to the middle of the four-hour work period as possible. But in cases when that’s difficult, breaks can be legally taken at another point in the work period. Like meal breaks, these rest breaks are required to be uninterrupted blocks of time when workers are fully relieved from their job responsibilities. Also like meal breaks, they’re timed and calculated based on total daily work time. Employees should receive a break for every four hours worked, or after a “major fraction” of that work period. A “major fraction” of a four-hour work period is anything more than two hours of work. So if you’re working a seven-hour shift, you get two 10-minute breaks: one for the first four hours, the next for the last three hours (which is more than half of a four-hour work period). But if your daily shift is less than 3.5 hours long, you’re not entitled to a rest break by law. Rest breaks are also different from meal breaks in a couple of ways: Importantly, only “non-exempt” (hourly) workers are entitled to rest breaks under California law — employees designated as “exempt” workers are not. However, if you’re an employee with an infant child, your employer is required by law to allow you lactation breaks to express milk for your child — provided they don’t exceed a “reasonable” amount of time. If your employer refuses, […]
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Why California Executives Can’t Afford to Ignore Non-Compete Agreements
Feb 23, 2023
| By Ottinger Employment Lawyers
| Read Time: 5 minutes
Across America, almost 30 million workers have signed non-compete agreements as a condition of their employment. The purpose of these agreements is to protect trade secrets, confidential customer information, or intellectual property from competitors by placing restrictions on when and where certain high-level or technically skilled employees can retain work. But in the past few decades, employers have increasingly required more and more workers to sign these agreements as a matter of course — even when they may not pose a legitimate risk to an enterprise’s legally protected proprietary assets. In many states, including California, non-compete agreements are unlawful, but many employers still pressure workers to sign them. A 2019 Economic Policy Institute study revealed that 45% of California businesses surveyed subject some of their employees to non-compete agreements. How is this possible? Employees are often intimidated by these restrictions, don’t understand how to challenge their employers in court, or may not even realize that non-compete agreements are illegal. Let’s walk through the restrictions that non-compete agreements put on employees, how these agreements are handled under California law, and what you should do if you’re facing an invalid non-compete agreement. If you have questions about non-compete agreements, please contact the experienced California employment lawyers at Ottinger Employment Lawyers today. What is a Non-Compete Agreement? A non-compete agreement is a legal contract designed to prevent employees from working with businesses that are competitors of their current employer. It does this by placing restrictions on when, where, and for whom individuals can find future work. Employees could be prohibited from starting a new position for six to twelve months after they leave their previous job, or they could be banned from working with other companies in the same industry that are located within 50 miles of their previous employer’s main site of business. These agreements are generally found in employment contracts, but they could also appear as a separate document an employer requires as a condition of employment. They’re sometimes linked to other restrictive clauses, like non-disclosure agreements, or non-solicitation agreements. Historically, non-compete agreements were reserved for top-tier executives or individuals working in highly technical roles — e.g., individuals with access to confidential information or who had a hand in the research and development of business-critical intellectual property. Non-compete agreements helped businesses protect their assets by preventing employees from taking critical skills and information to competitors. But in the past two decades, it’s become more and more common for employers to present non-compete agreements to employees who would not normally have signed them in the past: mid-level executives, managers, and even lower-skilled, waged workers. A 2019 study estimates that 53% of American workers bound to non-compete agreements are non-salaried — and 14% of them make less than $40,000 a year. These restrictions can be crippling for individual workers’ career aspirations and earning potential. By preventing workers from seeking competitive pay and opportunities, non-compete agreements contribute to wage stagnation and further entrench pay inequalities. The Economic Policy Institute’s 2019 study shows that the limitations that non-compete agreements place on worker mobility also have a negative impact on the economy as a whole, restricting opportunities for innovation and growth that come with workers’ freedom to seek competitive opportunities. What is California’s Policy on Non-Compete Agreements? Because of the growing criticism of the negative impact that non-compete agreements have on worker mobility and the economy, many states — like North Dakota, Oklahoma, and recently Washington D.C. — have banned or severely limited their enforcement. In California, it’s illegal to enforce non-compete agreements that put limits on an employee’s future job prospects. According to California Business and Professions Code Section 16600, any contract that restricts an individual from “engaging in a lawful profession, trade, or business” is null and void. State labor law only makes exceptions to this ban on non-compete agreements in very specific cases: for example, when a business is being sold, or an LLC is being dissolved. But when it comes to the bulk of the circumstances where non-compete agreements arise (as contracts between a business and an individual employee), the law is simple and clear: a company can’t prevent you from working in a certain geographic area, for a period of time, or for a competitor. Importantly, this ban on non-compete agreements protects individuals who work in California even if your company is based in another state where non-compete agreements are legal. Many businesses who employ individuals living in different states include what are called “choice of law” provisions in their employment contracts. These clauses specify that any potential dispute must be adjudicated in the state where the contract was signed. So, if you’re an executive who lives in California but signed an employment agreement for a New York-based company, you may have technically consented to the application of New York law (which allows non-compete agreements) in any future suits. But according to California Labor Code Section 925, that clause would be invalid. If you primarily live and work in the state, California law must be applied in any lawsuits that arise between you and your employer. Your company can’t enforce any agreement that would deprive you of the protections of California labor law to adjudicate a suit in a different state. The only exception to this rule? If you were independently represented by legal counsel when you originally negotiated the terms of the employment agreement, then you are bound to any potential clauses favoring another state’s law that it includes. What to Do if You’ve Signed a Non-Compete Agreement in California Unfortunately, even though non-compete agreements are banned under California law, many companies still present them or try to coerce workers into signing them. These agreements are sometimes included in the fine print of employment contracts, where workers can easily overlook them. Even if an employee is aware they’re signing one, they may feel resigned to obeying its restrictions due to employer pressure or fear of potential legal consequences. California employees can report an employer to the California Attorney General’s office […]
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Bonus Disputes and Tech layoffs: Are Employees Facing Downsizing Entitled to Unpaid Bonuses?
Feb 23, 2023
| By Ottinger Employment Lawyers
| Read Time: 4 minutes
As the giants of the tech industry continue massive layoffs in the face of current economic headwinds, more and more workers find themselves facing the challenges and uncertainties that come with being a victim of this restructuring. Employees who have been affected by one of these mass layoffs likely have a lot of questions: Are they getting a fair severance package? Do they have a case for wrongful termination? What will happen to the bonuses they were promised? Many tech professionals, who often receive a significant amount of their annual compensation in bonuses issued at the end of the year, are likely concerned that their former employer might withhold these funds if they’re no longer employed at the time of payout. Unfortunately, it’s true that employers don’t have the incentive to pay out bonuses to workers terminated before the end-of-year payment period. But employees have some legal recourse to recover unpaid bonuses in certain cases. Let’s break down the two different types of bonuses workers receive, describe what a non-discretionary bonus looks like, and outline how employees can make a case that they’re entitled to an unpaid non-discretionary bonus, even if they’re no longer employed. If you have questions about non-discretionary bonuses, please contact the experienced employment lawyers at Ottinger Employment Lawyers today. When are Employers Not Required to Pay Out a Bonus? The law categorizes bonuses into two types: discretionary and non-discretionary. Generally, employees are not entitled to recovery of bonuses that are considered discretionary or “unearned.” No Right to Purely Discretionary Bonuses A discretionary bonus is a payment given to a worker under circumstances entirely determined by the employer’s judgment. The decision whether to offer it, as well as when and how much to pay, is completely up to the employer and not contingent on contractually outlined performance-based factors: e.g. hours worked, efficiency, or output. The classic example of a discretionary bonus is an employer’s end-of-year holiday gift. Bonuses paid for special occasions, like celebrating a particularly good year, or recognizing a worker’s service tenure, are also discretionary. Because this is a payment that is not linked to any specific actions on the part of the employee, it’s sometimes also referred to as an “unearned” bonus. In California and New York, discretionary or unearned bonuses aren’t considered wages or included in regular or overtime rate of pay calculations. Employees are not legally entitled to the payment of discretionary or unearned bonuses that occur after the end of their employment. California Workers Can Recover Certain Bonuses California employees enjoy rights that few other states offer. For example, even purely discretionary bonuses can give rise to the most developed and powerful employee rights laws in the country. Non-discretionary bonuses are generally recoverable even after an employee has been dismissed. This is because in many states, non-discretionary bonus payments are considered part of a worker’s earned wages. For example, in California, non-discretionary bonuses are also referred to as “earned” bonuses, and in accordance with the state’s Division of Labor Standards Enforcement, they must be included in overtime pay calculations. A non-discretionary bonus is a payment specifically linked to an employee’s performance in an agreement made between employer and employee. This type of bonus could take the form of a reward offered to an employee or their division for achieving certain productivity or efficiency objectives in a period of time, e.g., closing a certain number of sales in a month. They could also include incentives that are offered for workers to improve the quality of their work or to remain employed with the organization through a specific date. The key thing that differentiates non-discretionary or “earned” bonuses from discretionary (“unearned”) ones is that they’re linked to objectives that are specific, known in advance, and agreed upon between worker and employer. These agreements are often outlined in employment contracts, where they include a variable for determining payment as a percentage of base salary plus a multiplier based on performance objectives. The language of the contract should include stipulations on which the promised payout hinges. These can be concrete, measurable performance goals set out in writing or more general “subjective and non-subjective” factors to be determined between you and your boss. If your bonus was promised to you under these terms, it could be designated a payment of earned wages owed to you as compensation for your work. Since, by law, employers generally can’t withhold or deduct wages that an employee has earned as legitimate compensation for their work, they’re responsible for paying out your bonus — even if you’ve been laid off. How to Show that your Unpaid Bonus is Legitimately Owed Compensation Disputes over the nature of an unpaid bonus can arise when there’s ambiguity around certain key terms of the agreement. For example, if: Employers may contest the amount of a promised payment for a bonus agreement that was promised orally, or even deny that a past regularly given bonus was made based on non-discretionary factors. Fortunately for employees, it’s still possible to win a recovery for an unpaid non-discretionary bonus, even in the absence of a written agreement. Bonus disputes are handled either in state court or arbitrated before a Financial Industry Regulatory Authority (FINRA) panel. Courts in New York state, for example, have found oral promises for future bonuses to be legitimate and enforceable contracts. Employees have also proven they’re owed payment for bonuses from implied contracts derived from evidence of past agreements and payments an employer has made. If an agreement doesn’t include an explicit amount an employee should be paid, a court can determine an appropriate amount based on reasonable guidelines, like the employee’s past bonus history. Even if an employee does not complete the full term of work from which the bonus would be calculated, you could still be due a prorated portion of your expected compensation — if you’re able to show that you successfully met the performance metrics set out in the agreement. Guidance from an experienced employment attorney is invaluable for successfully navigating the bonus dispute process. Get […]
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