RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Napa, California (707) 222-6361 2013 Rybicki & Associates P.C.
Many types of hospitality employers: Lodging: Hotels, Resorts and B&B Food and Beverage Winery Hospitality Catering and Event Management Casinos Amusement Themed Destinations Transportation: Tour Services, Limousine Many more related businesses
All Share Similarities Basic Wage Laws Sexual Harassment Protection Occupational Safety and Health Immigration Posting and Recordkeeping and many more basic requirements. Workers Compensation
State and Federal Laws Apply Federal law sets general minimum wage and overtime requirements California sets a higher $8.00 minimum wage for most hourly employees. And California does more
Know Your Wage Order! California applies individual wage orders to specific occupations and industries. Some apply to specific industries, regulating all employees within each industry. Others apply to specific occupations worked outside a regulated industry.
Not All Wage Orders are the Same Different wage orders have somewhat different requirements. Some permit commissioned inside employees without overtime, Some set different overtime requirements, All employers must post the appropriate wage order!
Examples of Wage Orders Purely Estate Wineries: Order 13 Partially Estate Wineries: Order 8 Breweries: Order 1 Restaurants: Order 5 Hotels: Order 5 Catering: Order 5 Bakeries: Order 1 or 5! Limousines and Tours: Order 9 Food retailers: Order 7 Theme Parks: Order 10 Casinos: Order 10
Which Wage Order? California DLSE (Labor Commissioner) publishes a guide to Wage Orders ( Which Wage Order ) View this and all orders: www.dlse.ca.gov Post in addition to all other state and federal postings not included in all in one posters! And post in multiple languages when necessary.
2013 Rybicki & Associates P.C.
Labor Code Private Attorneys General Act California Labor Code 2698 2699.5 Allows employees to sue for Labor Code violations Allows recovery of existing penalties previously collectable by state agencies, and creates a penalty for all other violations.
Labor Code Private Attorneys General Act Existing penalties: Dollar value of prior penalty amount. Where there is no existing penalty: $100 per employee per pay period (first violation) $200 per employee per pay period (subsequent violations) Penalty split 75% state, 25% employee
PAGA Applies to Wage Orders Labor Code Section 1198: the standard conditions of labor fixed by the [IWC] shall be the standard conditions of labor for employees. Employment under conditions of labor prohibited by the order shall be unlawful. Section 1198 has no preexisting penalty, so the $100/$200 penalty has been allowed. 2013 Rybicki & Associates P.C.
PAGA Applies to Wage Orders Any wage order requirement (in addition to any prohibitions) is arguably a condition of labor Thus virtually any wage order violation may be the basis for PAGA claims! 2013 Rybicki & Associates P.C.
2013 Rybicki & Associates P.C.
Seating Working employees shall be provided with suitable seats when nature of the work reasonably permits use of seats. When the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area Employees permitted to use such seats when it does not interfere with the performance of their duties.
Temperature Temperature: Reasonable comfort in work locations Excessive heat or humidity Heat below 60 F. Restrooms, changing areas, rest areas above 68 F.
Clocks Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable.
Lockers Lockers: Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees outer clothing during working hours; When required, for their work clothing during nonworking hours.
Change Rooms Change Rooms: When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean.
Resting Facilities Suitable resting facilities shall be provided in an area separate from the toilet rooms, and shall be available to employees during work hours.
ADDITIONAL PITFALLS Uniform and Tool Deposits Providing tools and equipment required by work, unless: Employee makes twice minimum wage ($16.00/hour), and Only hand tools and equipment customarily required by the trade or craft.
ADDITIONAL PITFALLS Elevator/escalator (four floors) Split shits Reporting time pay Alternative workweek procedures recordkeeping coercion disclosures
ADDITIONAL PITFALLS Discrimination for refusing to work over 72 hours One day s rest in seven Meal and Lodging credits General wage and overtime violations
ADVICE KNOW which wage order applies to your business or employees Carefully READ the forgotten parts of your Wage Order DOCUMENT compliance with these parts (e.g., temperatures)
Meal & Rest Periods Non-exempt employees must have an opportunity to take meal and rest periods when required by law. Failure to provide breaks = 1 hour penalty every day! HUGE ISSUE IN HOSPITALITY: California Supreme Court has provided some flexibility but employer must show that it has provided opportunities to take breaks.
Meal & Rest Periods Rest Period 10 minutes paid break for each 4-hour period (after first 3.5 hours) Meal Period 30 minute unpaid period when employee works five or more hours (and ten or more hours) Meal periods almost always require that employees be relieved of all duties (no phone answering!). Penalty for missed breaks is now deemed a wage penalties may go back three or four years!
Some Hospitality Issues Hotel and Resort: Single employees working through the evening or night not relieved of all duties. Restaurants: Front-of-the-house staff who do not want to lose tip income, back-of-the-house staff who do not want to lose production. Wineries: Crush season and misclassified wine club and marketing staff.
Some Hospitality Issues Tipped employees: may not have incentives to miss breaks (might occur in tip pools) Timing: Supreme Court clarified that meal breaks may be taken very early in the shift so long as the break is taken before the fifth hour.
Who is Exempt from Overtime? A salary alone does not exempt employees from overtime! Employees must fall within an appropriate exemption category to be overtime exempt. Exempt employees must also receive two times the state minimum wage: $33,280 per year
Exemption Issues Employees must perform their exempt duties most of the time that is, more than half their total work time. There are no part time salaried employees; the minimum pay requirement is an absolute minimum so long as an employee works once during the week. The law assumes employees are non-exempt without proof to the contrary.
Common Hospitality Issues Culinary workers who spend more than half their time actively preparing food Event managers whose primary duties are inside sales and working events Hospitality and housekeeping supervisors who perform the same work as other staff Inside sales and marketing staff paid on a commission basis (who are not exempt under any wage orders except in some cases Nos. 4 and 7).
Proper Wage Treatment Be careful not to follow practices (such as industry association guidelines) that do not comply with California law. There is no California Tip Credit toward state minimum wage or overtime. Note: Credit toward local minimum wages may be adopted (such as in San Francisco and San Jose) California regulates tip sharing as well.
Manage Tips Properly! Unlike service charges, tips belong solely to employees. (Cal. Labor Code 350, 351) Neither the employer nor a supervisor may share employee tips Tip pooling can only be required in a manner customary in the industry
Section 351 Questions Who is the employer or agent? Who are the employee or employees to whom the gratuity was paid, given or left for? Do tip pools violate the rule that tips are the sole property of the employee or employees for whom they were left? No!
Tip Pooling Employer may require employees to pool tips Recent case allows pooling in any tipped environment, not just restaurants Notes that tips left for individual employees and for all employees may be pooled But recent authority is still unclear on who is an agent of the employer 2013 Rybicki & Associates P.C.
Advice Clarify tip pooling in a written policy Do not include any employees who have authority to hire or discharge any employee or supervise, direct, or control the acts of employees. Be careful sharing tips with employees not directly involved in customer service. 2013 Rybicki & Associates P.C.
Court Clarifies Recent court case clarifies the meaning of split shift and reporting time pay These contradict some longstanding Labor Commissioner authority Eliminate some long-held misconceptions about reporting time and split shifts
Reporting Time Reporting time: Calculated by time scheduled that day Pay only required if an employee receives less than half the time scheduled for that day So if an employee comes in for an employee meeting you only pay for the meeting time If an employee meeting was scheduled for an hour, and the employee was paid for the hour, no additional pay is required contrary to prior belief: no minimum two hour pay
Reporting Time Trap You may have short scheduled meetings But if an employee is scheduled to work an entire day but is sent home (for example, terminated upon reporting to work), then: Entitled to one-half the usual day s time At least two hours
Split Shifts Court also found that split shifts require a premium only if the day s pay does not equal minimum wage plus one hour: Most employees earn well over minimum wage So most will never be entitled to split-shift premiums But hospitality has common pitfalls: restaurant, sales/commissioned employees, other minimum wage positions
Poster Required Certain employers must post notice in a conspicuous location viewable by the public where similar notices are customarily posted Poster provides information for reporting forced work in any industry Must be posted in English, Spanish, and another language if required under voting laws.
Must be posted by: Poster Required (1) On-sale general public premises licensees; (2) Adult or sexually oriented businesses; (3) Primary airports; (4) Intercity passenger rail or light rail stations; (5) Bus stations; (6) Truck stops; (7) Emergency rooms within general acute care hospitals; (8) Urgent care centers; (9) Farm labor contractors; (10) Privately operated job recruitment centers; (11) Roadside rest areas; (12) Businesses or establishments that offer massage or bodywork services (except for certified therapists?)
Poster Required Model notice to be provided by the Department of Justice by April 1, 2013 (haven t seen it yet) Penalty: $500 first offense, $1000 subsequent offences.
2013 Rybicki & Associates P.C.
A Few Extra Issues OSHA: Safety standards for minor employees. Local minimum wage (and other) requirements: do your employees ever go to San Francisco or San Jose? Mixing wage orders: wineries and crush. 2013 Rybicki & Associates P.C.
Richard C. Rybicki rrybicki@rybickiassociates.com 551 Coombs Street Napa, CA 94559 Tel (707) 222-6361 Fax (707) 222-6383 2013 Rybicki & Associates P.C.