After more than 40 years of employment defense as an attorney, we’d like to share some important notes for a San Diego or California employer. California is the most difficult state in which to be an employer, and plaintiffs attorneys are actively advertising for and seeking disgruntled current and former employees to pursue you for a lawsuit or PAGA class action.
Important Notes for a San Diego or California Employer Key Takeaways:
- California is the most difficult state in which to be an employer. We have unique laws and provide incentives such as the Private Attorneys General Act or PAGA for employees to sue their employers on behalf of the State of California, and in return, the employee(s) get to keep a large portion of what their lawsuit achieves. This is bounty hunting, and all California employers need to be alert and follow established procedures and guidelines closely.
- This is especially true in wage and hour issues such as rest and meal breaks, unpaid overtime, failure to pay the minimum wage, and issues with paychecks or paystubs.
- You need an experienced California employment defense attorney to review your practices and procedures, implement controls and best practices, and consult when you have any question as a California employer.
The Deck is Stacked Against California Employers
Many California and out-of-state employers who come to our state are unaware of the unique laws and regulations California places upon employers. We have unique laws such as the Private Attorneys General Act or PAGA, where the State of California encourages employees to step into the shoes of the Attorney General of California, and sue their employer on behalf of the State of California. Their incentive? The plaintiff employees are rewarded with a large portion of what ever their lawsuit generates on behalf of the State of California. Employers can be sued by current or former workers, so it is important to keep up with the latest minimum wage guidelines, and all unique California labor laws.
Rest Break Requirements
California law specifically provides uninterrupted breaks for non-exempt employees to rest and to have a meal. These may not be codified in federal law, but they must be observed by San Diego and California employers. As a San Diego or California employer, you must provide your employees with regular, paid 10 minute breaks to rest, where the employee is relieved of all duties. If the rest period is interrupted you are most likely liable for paying additional compensation. Rest periods are based on the number of hours worked:
- At Least 3.5 Hours and less than 6 hours = one paid rest break
- Between 6.0 and 10 Hours = two paid rest breaks
- More than 10 and less than 14 Hours = three paid rest breaks
- More than 14 and less than 18 Hours = four paid rest breaks
- More than 18 and less than 22 Hours = five paid rest breaks
If an employee works less than 4 hours they are not required to have a paid rest break. Rest breaks may not be combined or accumulated (such as vacation or sick pay are often accumulated when unused).
Meal Break Requirements
Another of the important notes for San Diego employers regards the requirement to provide a meal break of at least 30 minutes after a given amount of hours work for any employee. Time off for a meal is also provided for in California’s employment laws. Meal breaks are not required to be paid, as rest breaks are. The employee should be relieved of all work responsibilities and free to leave the premises during a meal break. Meal breaks are also determined by hours worked:
- More than 5 Hours (but do not work less than six hours) = 1 meal break
- More than 10 Hours and less than 15 Hours = 2 meal breaks
- More than 15 Hours and less than 20 Hours = 3 meal breaks
- More than 20 Hours = 4 meal breaks
One important fact relating to meal breaks is the “relief from work duty” requirement. If an employee is not free to be relieved from work duties during a meal break they must be paid their regular (hourly) wage, and this must be agreed to in writing by both parties. If an employee takes the first meal break they may agree to waive the second. Those who work more than 5 hours but less than six may need to agree to waive the meal break.
Pro-Tip: “What is the best precaution a San Diego or California employer can take? The answer: Pay attention and have a good lawyer.
Have a good lawyer for employers who stays up to speed and take those little technical matters seriously, because it doesn’t cost much to be in compliance. It really doesn’t, but it costs so much to get caught. Usually you don’t get caught for a few months and before you know it, you could literally lose hundreds of thousands of dollars for an accounting error or the way you put your paychecks out or your refusal or failure to put up a little sign in your break room. All those little things. There’s some lawyer out there, Mr. Bounty Hunter, looking for you to try to collect five, 10, $15,000 in attorneys fees for tiny mistakes made by San Diego and California employers.
When we’re talking about protecting our employer clients, the old saying, ‘a good defense starts with a good offense,’ definitely applies. What are the elements of a good offense in your mind for an employer?
Employment contracts, human resource manuals, employee handbooks, rules and regulations, training and staying up to speed on the ever-changing laws in California. Having a lawyer on speed dial you can call with a question or concern and get the right answer, often without a bill!
Let’s talk about class actions. That’s how you take a mistake on the way somebody drafted someone’s paycheck in the tune of, let’s say $15 a week. That puts you in a class action that costs you three, $400,000 because of an accounting error that led to a class action. Now, had you had certain types of agreements in place, even some kinds of arbitration agreements (that’s where we’re at now on these laws) you could have cut this off. Also, had you had a Watkins Firm lawyer you could talk to about your procedures or maybe an outside accounting service to review it or a CPA or our HR person, someone you can call, you could prevent a huge potential liability. If there’s any questions or your staff can call, then you won’t have this problem. And if you do, then you shut it down right away.
Fast action in any of these matters is the key. Pick up the phone and call us the second that you think something’s going on. Why does that matter?
Judges don’t really like these cases, and there’s a lot of technical reasons to throw them out because they’re turning into sort of a shady PI lawyer, the person that hangs out in the hospital room. These kind of employment lawyers are starting to be like that. And so if they don’t follow all the rules and you get to court in the first couple of months and you file a motion saying you didn’t give the proper notice, you didn’t state the proper cause of action, judge will throw it out.
How about if we can help you to mitigate or remediate the problem altogether? If you know ahead of time and have good experienced lawyer for employers that’s not just ready to milk you, you can put a quick, inexpensive stop to the whole thing. Because that’s what other lawyers often do, they won’t propose a solution. They’ll just propose fight, fight. But sometimes we have our employer clients come in, and we say, ‘no, no, no, don’t pay us all this money. Pay the extra $3,000 in wages. Send out amended pay stubs before you even have to answer the complaint.’ And guess what? All of the causes of action that have attorney’s fees in them are gone. Nobody wants to see you anymore because of that. So yeah, quick action gives your lawyer the right to do things that just destroy a case in the beginning.” – Dan Watkins, Founding Partner
Important Notes for California Employers to Understand and Fulfill
It is also important for California employers to thoroughly understand and enforce minimum wage requirements, and all other work-related laws, regulations, and ordinances. These important notes for a San Diego or California employer prevent disputes and potential exposure to wage and hour and/or PAGA violations. Compliance with all laws and regulations regarding employer obligations is an important focus for any San Diego or Southern California employer.
Disputes between employers and employees in California are expensive, and can lead to investigation by California labor agencies that results in substantial fines and penalties. If you are a San Diego employer and you have questions regarding minimum wage, breaks, meals or any California or federal employment laws invite you to review our podcast Episode 39 – What Keeps Employers Up at Night as well as the strong recommendations of our clients and contact the Watkins Firm or call 858-535-1511 for a complimentary consultation today.
Meet Dan Watkins:
Daniel W. Watkins is a true people person who sincerely listens. He cares deeply about what others are going through. Dan enjoys digging into the facts and finding creative solutions to problems. He contributes his insights candidly and constructively.
Dan’s interest in people make him deeply invested in every relationship and his exuberant personality makes him a true litigator. Dan fights for his clients with a fierce and calculated commitment.
Dan has practiced in the areas of business, medical practices and healthcare business, high tech/science, real estate and employment defense law since 1987. He is a trusted litigation strategist and true trial attorney with over 50 jury and bench trials to his credit. Dan has successfully represented both large companies and individuals and achieved substantial victories in well-publicized trials throughout California and the U.S.
He is experienced in business and corporate formation and administration, as well as all forms of alternative dispute resolution, including binding arbitration and mediation.
THE ROAD TO BECOMING A BUSINESS LAWYER AND LITIGATOR
Dan has almost 40 years of experience working with, for and against some of the largest insurance companies in the country. He has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Battery, Premises Liability, Product Defect, Medical Malpractice, Discrimination, Sexual Harassment, Construction Defect, as well as Unfair Competition, Defamation, and Trade Secrets.
In December 2003, Dan commenced litigation against Health South Surgery Centers-West, Inc and its’ subsidiaries, exposing the company’s extensive mismanagement and misconduct of its’ surgery centers. Dan has also been asked by some of California’s largest municipalities and corporations to conduct legally required investigations into matters involving alleged employment discrimination and harassment.
