Monday, April 16, 2012

Brinker does it affect you?

On April 12th, California employers learned of the long awaited decision that many thought they would never see. The Brinker decision has now lifted the burden of employers of the obligation to enforce meal periods for employees within five hours of starting their shifts. Meal periods that are missed, late or shorter than thirty minutes (even at the employee's request) have in the past resulted in endless class action litigation not to mention substantial monetary penalties to employers. Employers and employees alike have expressed frustration with the lack of flexibility afforded with regard to work and break time.

What does this mean for employers? As hoped, the decision provides some measure of relief to employers, but requires employers to remain diligent about policies, practices and documentation to protect themselves from prospective employee claims. This is really in line with a growing number of federal court decisions on this issue, the Supreme Court noted that "an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work" in the thirty-minute span of time allotted for a meal break. This means that an employer must provide, but need not enforce, a timely meal period to its employees.

The obligation to "provide" the meal period is satisfied if the employee is relieved of all work duties for a period of at least thirty minutes and is free to leave the workplace. Once the employer has "relieved the employee of all work duties," the employee may choose to use the meal period for any purpose he/she may choose, including to perform work-related tasks.

This decision, however, does not relieve an employer of the duty to pay wages (either straight time or overtime) to employees who personally elect to work through their meal periods if the employer "knows or reasonably should have known" that such work was occurring. Instead, it merely relieves the employer of having to pay the one-hour penalty if the employee chooses to work during the meal period. Presumably, this also means that the employee could voluntarily choose to skip or shorten his meal period without resulting penalties to the employer.

The first thirty-minute meal period still must be provided to the employee after no more than five hours of work. After no more than ten hours of work, the employer must provide a second thirty-minute meal period. The Court clarified, however, that there is no "rolling" five hour period; in other words, once the first meal period has been taken by the employee, there is no obligation to provide a second meal period until the employee has worked ten hours (even if the employee has worked more than five consecutive hours after the first meal period). This means that if an employee working an eight hour shift takes an early meal period during the second hour of work, then returns for another six hours of work, there is no obligation to provide a second meal period during that six-hour stretch.

What’s the rumbling around the water cooler? What does it mean to provide a meal period? Judging by the Brinker decision, any pressure by the employer upon an employee to perform job duties during a meal break or to skip or shorten a meal break will be viewed as a violation. So the trick will be how to ensure no perceived pressure is felt  and stay away from scheduling policy that make it difficult to take meal periods.  Yes that means, informal (or formal) pressure, ridicule or reprimand toward employees who do not perform any work during their meal breaks, or other methods of incentivizing or encouraging the skipping or shortening of meal breaks.

Ultimately, the decision does nothing to prevent employees from claiming that the meal period was not "provided" to them, and the one-hour meal period penalty remains in place for meal period violations. Despite the good news for employers found in Brinker, employers must remain vigilant to protect themselves from meal period claims.

Employers and employees also will appreciate the additional flexibility implied by the Court's decision. However, notwithstanding the hype leading up to the Court's ruling, the Brinker decision boils down to "keep doing what you've been doing" for most employers.

So how can employers protect themselves?  The following certainly will help:

  1. When possible, work with employment counsel to implement clear written policies (with employee acknowledgements) informing employees that they are entitled and expected to take an unpaid thirty-minute meal period after no more than five hours of work, and a second unpaid thirty-minute meal period after no more than ten hours of work. Note their right to complain (without fear of retaliation) about any pressure exerted upon them not to take such meal periods.
  2. Require employees to record the time taken for meal breaks to demonstrate that they did so (or knew that they could do so but chose not to on any given day) and to record any time worked during the pay period so that they can be paid applicable straight time or overtime rates for their work.
  3. Update handbooks to clarify policies regarding rest periods. Make sure your rest period policy does not reference a ten-minute rest period "during every four hours of work."
  4. Discipline employees who violate company meal and rest break policies (including supervisors who discourage employees from taking their breaks).
Employers would be wise to review and update their meal and rest period policies and time card certifications too, to ensure the utmost flexibility for employers while maintaining compliance with the new ruling.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Tuesday, February 7, 2012

Credit Check change...

AB 22 became effective on January 1, 2012. One of about 18 new laws, this is perhaps one that will affect many employers because it limits the use of credit checks.
We've all been there. We fill out our employment application, as we wait for our interviewer to be ready, only to be asked to sign our life away and allow the employer who may or may not offer us a job, to check our credit. This is no longer the case. AB 22 says that employers and prospective employers are prohibited from obtaining and using consumer credit reports about applicants. Of course the exceptions are certain financial institutions and if the job you're applying is a managerial position that qualifies for exempt status. Now more than ever there is a need to know the exempt/non-exempt status. Please refer to an employment attorney for some guidence in this situation.

The prohibition against obtaining and using credit reports also does not apply to:

-Law enforcement and positions for which the info is required by law
-Positions that involve regular access to bank or credit card information, SS numbers and date of birth.
-Positions in which the person would sign on the employers checking accounts, credit cards, transfer money or enter into financial contracts on behalf of the employer.
-Position involving access to proprietary information
-Positions that involve regular access to cash totaling $10,000 or more of the employer, customer or client during the work day.

So, if you are in the midst of hiring someone, please make sure that you do not violate the law and ask them to sign off on that pesky credit report form, unless the position you are trying to fill truly needs it.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Wednesday, January 18, 2012

Contacts N Coffee

Well yesterday I presented a 10 minute tidbit about The HR Firm, what we do and how we can help our community at the Conejo Contacts N Coffee. For those of you who have not been able to attend one of the many meetings, trust me, you have to try it. I really didn't know how I was going to get the passion and mission of The HR Firm into a ten minute presentation. So I went back to my training roots. One thing I know is that adults love to be entertained while they learn. I know people were expecting a bit of a dry, scary presentation and I loved that I surprised all of them as I tossed chocolate at them for answering questions correctly! Training 101, keep your audience engaged. I didn't want to make light of what we do but let’s face it, any legal stuff is scary. Now add that to the burden of being in business and well, you have lots of people who want to run away. Training 102, earn your audience's trust. My goal was to inform about what The HR Firm does but also let people get to know me. I have been in Ventura County now for over 15 years and have honed my skill set in some of the county's most prestigious companies. Why is that important to know? Simply put, I'm here to stay and give back to my community. Training 103, give an action plan. With so many law changes, there really is no better itme like the present to make sure your company is compliant. The HR Firm is here to help with all of your Human Resource needs, be it an audit of your policies and procedures or setting up your HR department.

The truth is, small businesses are the key to turning this economy around. At The HR Firm, we want to make sure each of our clients and members of our community know that they have someone who can be a resource and understands well the needs of the small business owner.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Monday, January 9, 2012

Independent Contractor vrs. Employee status for 2012...

Wow!! It was only the ninth day if the year and people were already in an uproar over the new HR laws. The one in particular is the AB 459. Specifically, I heard rumblings that this is being used to only apply the independent contractor title and designation to people with a license.  Facebook was full of posts of people complaining that they have lost their contractor designation and were now temporary employees. Lets discuss this a bit shall we?

In the HR world, a temporary employee is really a seasonal employee, think Macy's during Christmas. This is not an independent contractor.  However during Christmas, Macy's does take out payroll taxes and follows labor laws.  This new law does not affect anyone other than independant contractors who receive a 1099 form.  If we read the AB 459, it says that there is a new penalty for will full misclassification of independent contractor between $5,000 and $25,000. In other words, this willfull misclassification is defined as "avoiding employee status for an individual by voluntarily and knowingly misclassified that individual as an independent contractor."  Do you see the problem? No where does it indicate that only licensed people can be classified as independent contractor and no where does it say that those who are not independent contractor must be classified as temporary workers.  Nor does it define what willfull misclassification is.  How do we apply a law that so far has so far yielded more questions than answers? Is this a ploy, as many have said, to force employers to put people on payroll?

So what do we do to keep up on how this law is going to affect us and our clients? We turn to education and networking.  The HR Firm  has attended several legal updates including one last week at Nordman Cormany Hair & Compton.  There are is now more information regarding how to determine if the person is truly a consultant or an employee. Three test to be exact. One for the IRS, one for the courts and one for the DOL. Now, more than ever before it is going to important for employers to have an HR professional on hand. Preferably one who is able to not only know the law but the limitations it sets.  Stay tune, as we delve into how this and many of the other laws will affect all California employers.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Friday, December 30, 2011

2012 is almost here!!

With many new laws becoming law as of 1/1/2012, we are hard at work to make sure our clients know what they will need to do to maintin compliance. We are looking forward to helping since some of the laws are a bit confusing.  Don't despair though! The HR Firm is working hard to launch a series of seminars and workshops in Ventura County specifically for small business owners.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Monday, December 12, 2011

Holiday Networking

It is really nice to see that the Ventura community has grown so much in the past few years.  As we see the number of invitations grow during this season, we are reminded that the holidays present a wonderful opportunity to network with some of the companies that we didn't get to during the year. For example, we have been invited to the Greater Conejo Valley Chamber of Commerce and the Simi Valley Chamber of Commerce holiday mixers. It occurs to us that this is a perfect time to establish personal relationships, which will yield business opportunities in the next year. Remember that Human Resources is about relationships and building trust, not only with employees but with employers. It is the one time during the year that everyone is not only nice to one another but wishes only the best for everyone. Introduce yourself and remember to to follow up with a nice note. Relationships all begin with a single phrase, "Hello my name is ..."
With 18 new laws waiting to become effective on January 1st, it is the relationships that we establish during the holiday season that will allow us to help the small business owners in our community to remain compliant and grow while getting to know us.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at

Thursday, December 8, 2011

Conejo Chamber of Commerce

The HR Firm participated in last week's speed networking at the Conejo Chamber of Commerce monthly breakfast. Not only was it fun but really a great way to get to the heart of what we wanted others to know about us. We got to thinking. If we only had one opportunity to make an impression, what should we say? Never wanting to be pushy or scary, the phrase that we repeated was, "We help companies be compliant by providing Human Resources consulting service."  Loved how many people smiled and asked how we did this because it depends on each company's needs. Some companies need an employee handbook, while others need to have their benefits audited. Bottom line, we do the work that is needed to ensure businesses grow in an organic way. When was the last time your policies and procedures were looked at? Do you have an updated safety plan? Have your posters been updated? If your not sure, there's nothing like today to get the process going.

If you have questions about human resources or need consulting in the area of human resources, please contact me, Rosandra Esquivel, at