Employment Law

The California Labor Code requires employers to provide their employees with ten-minute rest breaks during the working day. Must those legally mandated rest breaks be free from all work duties? Yes, they must. During a rest break, employers must: (1) relieve employees of all duty; and (2) relinquish control over how the employees spend their time.

As to the first requirement, employers must relieve employees of all duties during a rest break. Employees cannot be required to hang around and pitch in if it gets busy, not even a little bit. Employees cannot even be required to stay “on call” during a rest break, whether that means keeping a walkie-talkie on, or staying near their cell phones in case they need to return to work before their ten-minute break is up.

The second requirement means that employees must have freedom to relax during their rest breaks. Because rest breaks are only ten minutes long, the freedom is not unlimited. An employer can usually require the employee to remain on the premises in order to avoid rest breaks stretching way beyond the ten-minute mark. By the same token, the employer cannot usually force the employees to spend their breaks in a windowless, stuffy “break room” when the employees might otherwise stretch their legs or sit somewhere pleasant.

Both of these rules apply to official and de facto conduct by the employer. If the employer has an official policy or rule that requires employees to stand by during breaks, that policy would violate California labor law. However, the employer does not need to have an official policy in place to violate the law. In reality, it is relatively rare for an employer to have such a blatant, “on paper” violation. Many employers maintain facially neutral policies that indicate employees are “free from all duty” during rest breaks, but reality proves otherwise. In some cases, the employers require the employees to work through their rest breaks; or to cut rest breaks short because of understaffing or poor management. In other cases, the employer might make the employees stay somewhere “out of sight” during rest breaks. In any case, that’s no excuse, and an employer who denies employees their rest breaks may be liable to those employees for unpaid wages and penalties.

Determining whether an employer has violated California labor law can be a tricky, fact-intensive question that requires analysis by an experienced labor and employment attorney. If you think your employer has denied you your right to rest breaks free of all duty and control, you should consult an attorney for advice.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

In FEHA discrimination cases, the plaintiff employee must prove the employee’s protected status (i.e., race, nationality, sex, disability, etc.) was a reason for his or her termination. In other words, if a jury finds the employer discriminated against its employee, that discrimination needs to be a cause for the employee’s termination. But even if an employee was fired because, for example, the employee was disabled, if poor performance reviews or other legitimate reasons also allegedly warranted termination, this may create a “mixed motive” defense, which can bar liability and/or damages.

For years, it was unclear which legal standard would apply to a “mixed motive” case. In 2013, the Court in Harris v. City of Santa Monica was asked to review the correct standard for determining liability in mixed motive discrimination cases. There, the Supreme Court held that a plaintiff must demonstrate that the discrimination was a “substantial factor” in an employer’s decision to terminate rather than just a motivating factor. Furthermore, if the employer could prove a legitimate motive would have led to the termination, the plaintiff is only limited to declaratory and injunctive relief, and no economic recovery.

The Supreme Court’s holding was later memorialized in the California Civil Jury Instructions:

“A ‘substantial motivating reason’ is a reason that actually contributed to the [termination]. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the [termination].”

Although the Court seemingly took the middle ground with the “substantial motivating factor” instruction, the rule is still a thorn in the side of many triable discrimination claims and could eviscerate much of a plaintiff’s damages. Nevertheless, an experienced attorney may be able to elicit discovery and testimony to bolster this causation inquiry and try to jump the substantial motivating factor hurdle.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

California passed a pioneering law mandating that each publicly held company headquartered in the state have at least one female on its board of directors (Senate Bill No. 826; Corporations Code §301.3). The purpose of the law is to address the lack of representation of women on boards of directors, as at the time it was signed, one-fourth of California’s public companies had no female directors. San Diego was the worst county in the state for board diversity – 44 percent of companies headquartered in San Diego had no women on their boards – the highest percentage of any county in the state, according to a 2018 report by USD Business Professor, Annalisa Barrett.

The law applies to both domestic corporations (those incorporated within California) and foreign corporations (incorporated in Delaware, or any state or country other than California) with principal executive offices in California. The law states that by the end of 2021, a corporation with four or fewer directors must have a minimum of one female director; a corporation with five directors must have a minimum of two female directors; and a corporation with six or more directors must have a minimum of three female directors.

The state may also fine companies not in compliance – $100,000 for their first violation and $300,000 for any subsequent violation, with each seat that is not filled counting as its own violation.

According to a report released by KMPG at the end of February 2020, 96 percent of California’s companies have complied with the new law – only 4 percent still had all-male boards by the year-end deadline, down from 29 percent when the law took effect.

Senate President Pro Tempore, Toni Atkins, a co-author of the bill, has said the results are validating, and that having more women in the boardroom makes sense, both for profitability and equality. California is setting a precedent for the entire country to follow, and indeed, other states are following suit, with similar measures being introduced in Washington state, Massachusetts, New Jersey, and Illinois. Investment bank Goldman Sachs has said it won’t take a company through an IPO unless it has at least one female board member.

A challenge to the constitutionality of the law was just dismissed this week by a California federal judge. A shareholder of OSI Systems, Inc. sued the Secretary of State, claiming that the law violated the 14th Amendment’s Equal Protection Clause. Judge Mendez in the U.S. District Court for the Eastern District of California dismissed his case, holding the plaintiff had no standing because the statute applies only to corporations, and he is a shareholder, “a distinction with a difference.” See Meland v. Padilla, 2:19-cv-02288 (E.D. CA, April 20, 2020).

At least a dozen other countries have addressed the issue of lack of gender diversity on corporate boards by mandating that 30-40 percent of board seats be held by women directors. Germany requires that 30 percent of public company board seats be held by women. In 2003, Norway was the first country to mandate 40 percent of board seats be held by women. Similar mandates have been legislated by France, Spain, Iceland, and the Netherlands.

If you have questions about complying with this new law or believe you need to take legal action to assert your rights, contact Haeggquist & Eck, LLP online or call (619) 342-8000 and ask how you can arrange a complimentary consultation with one of our attorneys.