Spencer Skeen, a partner in the San Diego office of Fisher & Phillips LLP says that employers need to consider their specific situation carefully when considering policies on breaks, social media and other employee activities that may be considered protected by the National Labor Relations Board.

Spencer Skeen, a partner in the San Diego office of Fisher & Phillips LLP says that employers need to consider their specific situation carefully when considering policies on breaks, social media and other employee activities that may be considered protected by the National Labor Relations Board.

Salaries and wages are usually one of, if not the, largest expense lines on a company’s income statement. Making a mistake in the payment of wages, or in the employment process, can still result in one of the biggest headaches and biggest expense a company might make to its balance sheet, according to San Diego employment attorneys.

And a favorable ruling from the California Supreme Court in April didn’t change the fact that employers need to exercise caution when managing employees and their behavior and work hours. Plaintiff lawyers are still looking for ways to make wage and hour claims. San Diego employment law defense experts advise business leaders to prepare for the suits, and think in advance about how an employment decision will look to a judge or jury. They also recommend employers prepare for social media related lawsuits, which may follow on the heels of newly passed state laws.

In Brinker, formally Brinker Restaurant Corp. v. Superior Court (Hohnbaum), the California Supreme Court ruled in April an employer need only “provide” but not “police” a meal break by doing the following: First, provide at least a 30-minute uninterrupted break; second, employees must be free to leave the premises; and third, the employee is relieved of all duty for the entire period.

The state’s high court also clarified what rest breaks an employer must provide: 10 minutes of rest for shifts of 3.5 to 6 hours in length; 20 minutes for shifts of more than 6 hours up to 10 hours; and 30 minutes for shifts of more than 10 hours up to 14 hours.

“The Court ruled [in Brinker] that employers must provide their nonexempt employees uninterrupted 30-minute meal periods, but they need not ensure that the employees take them,” said Spencer Skeen, a partner in the San Diego office of Fisher & Phillips LLP. “Employers need to consider their specific situation and consider how reasonable it will look [to a jury or court]. There are situations when a meal break isn’t plausible — like long-haul trucking — where pulling off on the side of the road during the winter might not be practical. There can be a waiver for those situations, and an employer should consult an employment attorney.”

Put the Policy in Writing

The language of Brinker has focused the plaintiff’s bar on whether a company encourages employees to work through meal and rest breaks, and they would most likely claim that an allegation of a companywide policy or practice of coercing employees to work through a rest or meal period would support a class-action suit.

“The best practice for employers is to have the policy in writing,” said Adriana Cara, who specializes in employment law at Brown Law Group. “The policy should include a process to report missed breaks, prohibition of computer and work-related cellphone usage during breaks, and supervisors should be trained in the policy and disciplined if they do not enforce it.”

Sam Sherman, a partner at Higgs, Fletcher & Mack LLP agrees. “The risk of Brinker is that an uninformed employer may only be hearing that it was a pro-employer or favorable to employers and, consequently, they no longer have to worry about meal or rest break compliance,” he said. “Nothing could be further from the truth.” Including breaks on times sheets is an effective way for employers to demonstrate compliance.

An up-to-date handbook helps, too. “I would not only make an employee sign indicating that they received the handbook, but also sign the specific page/s in the handbook on meal and rest breaks indicating that they read and understood those specific pages,” Sherman said. “That helps avoid an employee’s claim that the company did not provide the break.”

“Allowing employees to work during meal periods poses its own risks,” said English Bryant, Senior Counsel, Tyson & Mendes LLP. “For example, if an employer consistently rewards those employees who work through lunch, the employer may be liable for pressuring employees to skip breaks. Employers should make clear that an employee’s decision to work through lunch must be voluntary and will have no bearing on an employee’s access to advancement opportunities or other benefits.”

Complicated Employment Decisions

The explosion of social media and smart phones gives employers another set of complicated employment decisions to make. Can employers restrict use of social media while an employee is on a meal or rest break? The answer is no, at least if the employee is using his or her smartphone.

“Many employers have policies preventing employees from accessing social media sites at work and some go so far as to ask their IT departments to restrict access to Facebook, Twitter, etc… on work computers,” said Sherman from Higgs Fletcher. “Of course, this may not work (too well) as most employees can access these services on cellphones.”

Sherman, therefore, recommends any social media policy adopted should be broad enough to prohibit all use of social media during working hours (again, an employee should be able to use social media during meal and rest breaks) and not just prohibit their use on company property. The other consideration for employers is whether this is good business. Some employers believe that an employee should never engage in personal activities on company time. While technically true, other employers believe that there are morale benefits to allowing employees to use social media on a limited basis, the employment defense attorneys agreed.

“As employees’ social media usage continues to impact the workplace, employers are using different tactics to monitor and control social media usage,” said Stacy Fode, a senior attorney at Brown Law Group. “Employers should take care with any limitations placed on employees’ social media use. There are legal limitations on an employer’s right to monitor an employee’s use of social media sites even when such use may impact the workplace. Employees have a right to privacy under the California Constitution, and there are restrictions on an employer’s right to take adverse employment actions based on an employee’s off-duty actions (such as participation on social media websites) pursuant to California Labor Code section 98.6 and 96(k) and Section 7 of the NLRA (which applies to non-unionized workforces as well).”

Governor Jerry Brown recently signed Assembly bill 1844, which prohibits employers from demanding user names and passwords from employees and job applicants, but the new law does not restrict the demand for passwords or information used on company issued electronic devices, said Fode.

Certain Activities Are Protected

“So an employer should never ask an employee for social media passwords,” agreed Sherman. “First, it probably violates California privacy laws (even though no court has ruled on the matter). Second, (it probably will violate the new state law). Third, it may set up an employer for a discrimination suit if he or she refuses to hire the employee or later fires the employee. That employee could claim that you took this adverse action based on information that you learned from reviewing his or her Facebook account (sexual orientation, genetic information, etc…).”

There have already been rulings from the National Labor Relations Board that employees who discuss work situations, even if they do so very, very critically of the employer, are engaged in activity protected by the National Labor Relations Act. The employees are protected by the Act whether they belong to a union or not.

“The [NLRB] has taken the position that employees who make comments about common workplace issues on the Internet are engaging in protected, concerted activity,” said Skeen of Fisher & Phillips. “If the statements are made after employment is terminated, that protection should not apply, so an employer may have more options” in responding to cyberlibel. Employers dealing with post-termination cybersmear might consider filing a civil action for defamation or trade disparagement.

Because this area of the law is still developing, an employer would be wise to consult an attorney before implementing a new policy. “Nationally, the NLRB recently forced an employer to retract its policy barring employees from disparaging the company’s management on social media because it was protected activity,” said English of Tyson & Mendes. “Before an employer adopts a policy or takes a personnel action based on employee online postings, it should consider whether the communications may be protected by law.”