Dispatches from California

1.  On the lighter side, a customer came into our establishment in California the other day with a horse.  Claimed it was a "therapy animal" and therefore it would be a violation of the ADA to not allow the horse in.  Not knowing the law but with some experience with California, my managers rightly let the animal in, then researched it later.  It appears that we are safe denying entry to animals that are not licensed service animals, but this is an evolving part of the law, apparently.  Since it costs us about $25,000 a pop to get even the craziest suits dismissed in California, we will continue to err on the side of caution.

2.  Perhaps even crazier, we recently were forced to institute an HR policy in California that working through lunch is a firing offense.  One warning, then you are gone.  Why?  California has a crazy law that allows employees to collect substantial ex post facto compensation if they claim they were denied a 10 minute break every four hours or a thirty minute unpaid lunch break after five.  Suffice it to say we have spent years honestly trying to comply with this law.   The 10-minute break portion is less of a compliance hurdle, but the lunch break portion has caused us no end of trouble.   Theoretically, under the law, the employee has a choice - work through lunch paid, eating at the job post  (e.g. in a gatehouse of a campground) or leave the job post for 30 minutes for an unpaid lunch break.   As background, every one of our employees have always begged to have the paid lunch because they are from a poorer area and need the extra 30 minutes of pay.

Unfortunately, it does not matter what preferences the employee expressed on the job site.  In the future, the employee can go to the labor department and claim he or she did not get their break, and even if they did not want it at the time, and never complained to the employer about not getting it, the employer always, always, always loses a he-said-she-said disagreement in a California Court or review board.  Always.  Sure, it takes someone utterly without honor to make this claim in Court, but there seems to be no shortage of those.  So, we took a series of approaches to getting people on-paper, on-the-record as having asked to work through lunch.  Unfortunately, one court case after another has demolished each safe harbor we thought we had.

A few weeks ago I was advised by a senior case-worker at the California Department of Labor that the only safe harbor left for employers is to FORCE employees to take an unpaid lunch.  This means they clock in and back out, this means they have to leave the job site (because if a customer happens to ask them a question, then they are "working"), and this means we have to ruthlessly enforce it.  Or we are liable for scads of penalties.  So, we find ourselves at the bizarre crossroads of making working through lunch a firing offense, and employees who generally want to work an extra thirty minutes each day to earn more money are not allowed to do so.  Yet another example of laws that are supposed to be "empowering" to employees actually ending up limiting their choices.

  • obloodyhell

    Hey, all you have to do to fix this is to ask a bureaucrat to sign off on it...

    Yeah.

    Sign off on it.

    Yeah, that's the ticket...

    :-S

  • MingoV

    Many studies have shown that employees achieve reduced stress, better health, and improved productivity by taking appropriate breaks away from their work areas. When I was an employer, I supported a policy of employees taking 30 minute lunch breaks away from their work areas whenever possible. (I directed medical labs, and patient care needs had higher priorities than breaks.) However, those facts do not justify governments mandating such policies for all employees at all workplaces.

  • Vitaeus

    yah and how many camp grounds are convient to places for the employee to leave the site , eat and return in 30 minutes, either the lunch ends up longer so less service or the employee gets to "stress" getting lunch.

  • SamWah

    And if one should sign back in a minute early... You. Are. Screwed.

  • Frankenstein Government

    Leave California. Millions can't be wrong.

  • Frederick Davies

    What are you still doing in California then?

  • Incunabulum

    And think how musch fun it will be in a couple of years when you start getting lawsuits from employees because you've taken away their legally mandated choice to take or not take a lunch break.
    Damned if you do and damned if you don't.

  • Dan

    As a California employer, I sympathize. But what am I missing here? If you pay the employee for working through a lunch break, you still have some future liability?

  • CTD

    I think Warren is saying that yes, you can do that, but there is effectively nothing preventing the employee from later claiming that you MADE him/her work through lunch and denied them a break. And that the authorities in California virtually always side with the employee in such disputes.

  • Ron H.

    The mandate is for a 30 min. meal break. It says nothing about eating.

  • Ron H.

    The reg states that employees are entitled to a break, but not that they are entitled to work through it it they choose. Such an arrangement is permitted if employee and employer agree, but as Warren points out, an unscrupulous employee can later claim he was denied the break, even if it isn't true, and will almost certainly win their case.

    No one claimed it's fair or just.

    I can imagine the conversation: "Look, I don't care WHAT you actually do about a break while you're out here, but your time card WILL show a 30 minute break every day, or I will fire you."

  • MingoV

    Stay in California. Tens of millions can't be wrong.

  • jhertzli

    According to some philosophers, any behavior that is caused is incompatible with free will. In other words, if you do something for a reason, you are not free. That means that the employees who had a reason to work through lunch are not free. The regulations are saving them from SLAVERY!

    I've been reading up on the bulshytt brand of determinism recently...

  • Estoy Listo

    "It takes someone without honor to claim they were denied their lunch break, etc."

    But think of the incentives. Someone working for two years would have accumulated about two month's worth of back pay.

  • Opie

    Ask ANY pharmacist about this kinda crappol-a, Zero breaks and 10-12 hour days. Forty years and might have gotten a 'real' lunch break maybe 50 times. And, sometimes got screwed out of the 1/2 hr of pay, as well.

  • Fabian

    You both sound like two jews in Germany, 1935.

  • http://profiles.yahoo.com/u/XQGGXIHVHOEE4LUC6B6Z4LCKOQ JeroenW

    or about the employee having access to an off-site restaurant during the break. Nothing wrong with taking a boxed lunch to work you prepared at home earlier and eating that, probably hundreds of millions of people around teh world do that every day.

  • louande

    There is only so much BS one can take. I left CA seven years ago, and do not regret it.
    The one thing I know for sure is that there will be a day of reckoning. This kind of BS can't go on forever without dire consequences.

  • innertrader

    The 3 smartest most successful men I know of have left the USA, much less California! They sold everything they had, everything!!! The first one left in 2002 and the last one left in 2007! The first two left in time to give up their citizenship, then the IRS noticed the money leaving and are now confiscating 50% of your total assets if you give up your citizenship. Absolutely amazing what's happening in this country!

  • Deadman

    When applying an arcane regulation it is usually wise to read all the details.
    Years ago, at the University of Sydney (according to Jim McClelland, a former Australian senator, minister and jurist), a smart student turned up to an exam on horseback; he informed the invigilators that they needed to stable his horse, and feed it, at the university’s expense, whilst he completed his examination; assuming he might be correct, they did so. A few weeks later, however, he received a bill for the full cost of stabling; a kindly note informed him that his stabling wasn’t free he had not been fully accoutred with a sword and spurs.