Adding to the complexity of off-the-clock rules are the number of employees who respond to e-mails, text messages or phone calls after their shift is finished. Workers often do so by choice, but the employer could be held liable for overtime should the employees file a later claim.
â€œTime spent on these activities will likely be deemed compensable,â€
One area that has attracted a significant amount of attention in recent years is rest periods; defined as requiring a 10-minute break period for every four hours of work, and meal periods of at least 30 minutes for shifts lasting longer than five hours.
Previously employers were required by law to ensure their employees took breaks appropriately, but it was difficult to manage, particularly for employees who preferred to take a break and conduct personal business at their desk or work station.
In an appeal of a court order in the case of Brinker Restaurant Corp. vs. Superior Court, the appeal reversed the stricter order, ruling that rest and meal breaks need only be made available, and not ensured.
As this is an issue that affects so many people and produced so many lawsuits, the California Supreme Court granted a review of Brinker decision. A final ruling is expected this year.
â€œWe recommend counseling employees to get off the clock and take their break,â€ Poole said.
There should also be wording describing the break periods the employee is required to take, at the bottom of every time sheet or card an employee signs, Koegle said. Repeatedly signing a time card with the advisory would be one means of acknowledging the law by employer and employee alike.
Employers should include strong written policy in their company employee handbook that nonexempt employees are not expected to work after-hours, and advise their employees of the policy.
Last, companies requiring employees to change in and out of uniforms at the workplace must compensate the employees for the time spent doing so.
The recent technology explosion brings a whole new set of complications for employers. The U.S. Supreme Court rules that an employee with a company-issued device such as a cell phone, smart phone or computer has a reasonable right to privacy while using the equipment.
First Amendment rights protect employee messages, even those a company deems objectionable. A company must have a reasonable cause to search text, e-mails or Internet browsing by an employee.
It is expected however that in the next few months the courts will rule in a companyâ€™s favor, granting a company the right to prohibit activity such as surfing the Internet for pornography. Employee use of social media, whether performing duties on the job or for personal use, is also a hot topic.
Companies will need to craft well-written employee policies outlining actions that are subject to discipline or termination. The next question will be how policies can be enforced if an employee violates policy after-hours when they are off-duty.
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