Issue 1 - 2011

Most leave laws do not require the employer to continue to pay the wages of the employee while not working. However, a new California leave law requires private employers to allow employees to take paid leave of absence for organ and bone marrow donation. This new requirement starts January 1, 2011 and allows employees to take up to 30 days paid leave for organ donation and up to 5 days paid leave for bone marrow donation.

Employers must restore an employee returning from leave for organ or bone marrow donation to the same position the employee held before the leave, or to an equivalent position. Companies may not interfere with an employee’s rights to take leave or retaliate against an employee for taking leave. The new law also gives employees the right to sue employers directly for violations.

Employers are advised to update their employee policies on an annual basis. This new paid leave law should be referenced within all new updates for employers of 15 or more employees.

A new law which also is effective January 1, 2011, exempts construction employees, commercial drivers in the transportation industry, and guards in the security service industries from a 30 minute meal period requirement provided the employees are covered by a valid collective bargaining agreement with specified terms which include, among other things, meal period provisions. The law, as many wage and hour laws, is very technical including numerous definitions so employers should receive advice of counsel before changing their meal period practices.

Do non-exempt employees need to clock-out and in for meal breaks? Can employers simply ask the employee to sign a statement that he or she received the 30 minutes instead of clocking out and in? Actually, clocking out and in for meal periods is required by California and federal law. If a Company merely has employees sign statements that they took their meal periods, but does not have the employees clock out and in, there can be legal disputes as to whether the employees really took their full 30 minute meal period. As most employers know, for every day a non-exempt employee does not receive his or her meal period, the employer may be subject to paying an extra hour of pay.

Separately, the California Labor Code imposes a $500.00 penalty for not complying with the clock out and in requirement. Employee attorneys often argue this penalty must be assessed per employee, per pay period. This recordkeeping penalty could be applicable even if the employees take their full 30 minutes. Plus, under the Labor Code, it is a misdemeanor to not follow the recordkeeping requirements.

Given these risks, employers should follow a strict clock out/clock in procedure for when non-exempt employees take their meal periods.