Can I Change My Employees’ Schedules at any Time to Account for the Ebb and Flow of Customers During the Week?

Q.     I operate a very successful chain of surf shops located throughout the entire San Joaquin Valley, called “1 Earthquake Away.” [1]  In addition to traditional surf attire and boards, we also sell wakeboards and stand-up paddle boards which are popular at the nearby lakes.  Being a good distance from the beach, you wouldn’t think it but my business is greatly affected by the weather.  When it gets really–really–hot in the Valley, people take off for the weekend to the coast, and my stores are busy on Wednesdays and Thursdays.  When it is not too hot, people stick around and head to the lake, so my stores are busy on Fridays and Saturdays.  As such, depending on the weather, my store can be flat either mid-week or on the weekends.  I am not a weatherman, so scheduling my employees can be a difficult task.  Is there any requirement that says I can’t change my employees’ schedules at any time to account for the ebb and flow of customers during the week?

A.     So long as the employees don’t actually arrive at the store (in which case you may be subject to reporting time pay), there is currently no requirement that you provide any sort of advanced notice to your employees.  They can simply be scheduled or rescheduled on an as needed basis.  However, that could change.  Last week the Assembly Labor and Employment Committee passed AB 357 that would subject food and general retail establishments of a certain size to penalties for changing an employee’s schedule.  Under the current draft, any employer in the food and general retail business with 500 or more employees and 10 or more establishments will be required to pay the following penalties: one hour of pay at the employee’s regular rate of pay, if notice of a schedule change is communicated less than seven days in advance but at least 24 hours’ notice is given; two hours of pay at the employee’s regular hourly rate for each shift of four hours or less if less than 24 hours’ notice of a change of schedule is given; and four hours of pay at the employee’s regular hourly rate for each shift of more than four hours if less than 24 hours’ of notice is given to the employee.  AB 357 also potentially creates a new protected class and a new leave of absence requirement for employers.    The progress of this bill should be watched as closely as your surf reports.  This potential new requirement would put a significant burden on California employers.  And, while I imagine it is hard enough to operate surf shops over 100 miles from the ocean, my guess is that it would be harder in Nevada.  Like Banzai Pipeline hard.  [2] Furthermore, while the current version of the law is limited to larger employers, if passed, an amended version may be broader or it could be expanded in later years.  While employers watch the progress of this bill, employees will be watching the beach and relaxing with their newly acquired benefit from last year’s legislature – paid sick leave. Surf’s up!

[1] Unfortunately, according to science (or at least NBC) Fresno will never be a coastal city.   http://www.nbcbayarea.com/news/local/Will-California-Fall-Into-the-Ocean-119434794.html

[2] http://surf.transworld.net/1000074837/features/top-ten-deadly-waves-of-the-world/hard.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

What if Bruce Jenner Were My Employee? Employers and Transgender / Transitioning Employees.

Q.     Much has been made recently about Bruce Jenner and his upcoming exclusive interview with Diane Sawyer in which he will discuss his plans to live as a woman.  There seems to be a reality TV/gossip magazine quality to the way Jenner is going about this.  This makes sense because he is part of the reality show “Keeping up with the Kardashians,” and because there were rumors his transition would be made into his own reality show.   I can imagine that somebody contemplating a similar transition in the workplace could become a very delicate situation.  This may be particularly true if the transitioning or transgender employee wants to use the restroom that is inconsistent with his or her current anatomy.  If I, as the employer, allow the person to use the other bathroom, I might get a sexual harassment claim from the other employees and, if I don’t, then there is potential for a lawsuit from the transgender/transitioning employee.  I don’t know what I would do!  To avoid it all, could I simply have an office meeting in which we all openly discuss the issue so everybody feels comfortable?   Is that infringing upon the employee’s privacy?  Since Kim, Kourtney and Khloe’s biological dad was a lawyer I tried reaching out to the clan – but, they are ignoring my tweets – and, frankly, I can’t keep up.  Can you help?

A.     It’s good you asked.  All kidding aside, this indeed is a delicate situation as not all “transitioning” people would want reality TV documenting their situation.  The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against, among other protected classes, sex, gender, gender identity, gender expression, and sexual orientation.  “Gender identity” and “gender expression” were expressly added to the FEHA in 2011 when Governor Brown signed into law AB 877 – The Gender Nondiscrimination Act.  AB 877 also specifically refined the definition of gender to include “gender identity” and defined “gender expression” to mean a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.   Based on FEHA, employers must carefully consider dress codes and appearance standards that require men and women to dress differently.  And, perhaps the more difficult aspect is the restroom.  Unfortunately, there is limited authority on this point.  The easiest solution, if practical, is to have gender neutral restrooms which allow only one person occupancy at a time.  However, this may not be practical.  If not, the employer must be very cautious about preventing somebody from using a bathroom inconsistent with that person’s gender identity.  The Obama Administration recently announced, “the White House allows staff and guests to use restrooms consistent with their gender identity, which is in keeping with the administration’s existing legal guidance on this issue and consistent with what is required by the executive order that took effect [Wednesday] for federal contractors.”  Although the White House’s policies are not binding law, it definitely provides insight into how at least the executive branch  – which includes the Department of Labor and the U.S. Equal Employment Opportunity Commission (EEOC) – views the issue.    Finally, you are right to be concerned about the employee’s privacy.  However, where an employee is making such an obvious change, he or she might not have any issue openly discussing it.  This may be an issue that you first discuss with the transitioning employee, and then, make a plan together on how to best approach it with your other employees in a private setting – you can leave the selfies, tweets and “leaked” information to the Kardashians.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Is Tip Sharing Between Exempt and Non-Exempt Employees Okay?

Q.     My employees at my local burger joint have seen the demonstrations and protests for higher minimum wage, and some of them seem pretty “fried” about their pay.  I simply cannot afford to pay my wait staff more than minimum wage at my restaurant, but I do let them collect tips.  Some of the “crew leaders” who do not work the floor of the restaurant, but supervise all my wait staff, have asked if they, too, can supplement their income with tips.  I was hoping my wait staff employees could just share the tips they make with their crew leaders. Can I “shake” things up and let my supervisory crew leaders partake in tip-sharing? Does it matter whether the crew leaders are exempt or non-exempt employees?

A.     As far as “shaking things up,” likely not.  Labor Code section 351 provides that “[n]o employer or agent shall collect, take, or receive any gratuity or part thereof that is paid, given to, or left for an employee by a patron . . . .” The term “employer” is defined in Industrial Wage Order 5, the wage order that governs the restaurant industry, as “any person … who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” Accordingly, the DLSE prohibits restaurant owners, managers, or supervisors from participating in any tip-sharing or tip-pooling arrangements. This is true even when an owner, manager, or supervisor is engaged in providing direct service to patrons.   Consequently, if a crew leader serves as a supervisor for the employer, the crew leader should not (in most instances) partake in any tip-pooling arrangement. Some elements that would suggest a crew leader works in a supervisory capacity are: (1) the crew leader is in charge of other employees during his/her shift; (2) the crew leader is the lead employee on duty during his/her shift; (3) the crew leader is responsible for setting work schedules or wages for other employees;  and (4) the crew leader is responsible for conducting any type of employee evaluation. The determination as to whether or not a crew leader is a supervisor cannot strictly be determined by the crew leader’s exempt or non-exempt status.   Unfortunately, this will not make your crew leaders happy.  Maybe provide them this tip, they could soon be replaced with computers.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Do I Have to Pay an Employee for “Reporting Time Pay” if I Let the Employee Go Home Early?

Q.     Tuesday it rained for the first time in …well… I don’t remember how long.  While I was excited about the rain, business was SLOW for my food business, Oxy-Motoring, which features produce from organic and environmentally sustainable farms, served out of my 1972 gas-guzzling converted motor home.  I had several employees show up, but, after about an hour with only a couple of customers, I sent my employees home for the day.  I gave them a “rain check” for the rest of their shift.  I only have to pay them for the hour they worked, right?

A.     Probably not.  In most circumstances, an employee who reports to work but is turned away by an employer must be paid “reporting time pay” for half the employee’s usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at the employee’s regular rate of pay. However, the two hour minimum does not apply to employees who have regularly scheduled shifts of less than two hours. For example, an employee who regularly works one hour in the middle of the day as a relief cashier would be entitled to receive “reporting time pay” for one-half hour if that employee reported to work and was turned away. Also, an employer who requires employees to attend meetings scheduled to last from 1 to 1½ hours are only required to pay employees for half of the scheduled meeting time if that meeting is canceled or finishes ahead of schedule. (See Aleman v. AirTouch Cellular (2011) 202 Cal.App.4th 117 review granted and opinion superseded, (Cal. 2012) 139 Cal.Rptr.3d 2.)  There are some limited exceptions to the requirement for an employer to pay “reporting time pay,” such as an act of God.  And, while in the Valley rain is certainly an appreciated act of God, it is unlikely the rain’s effect on your food truck business would wash away your requirement to pay for reporting time. In any event, you don’t want a lawsuit to rain on your parade.  So, you should pay your employees for at least half of their regular work day (generally, no less than 2 hours, but no more than 4 hours).

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

When Can an Employer Require an Employee to Pay for Uniforms Required by the Employer?

Q.     It’s April Fools’ Day, and this year a few of my employees took their practical joking to the next level. I won’t go into details, but suffice it to say this year’s prank made a mess and now I am going to have to provide at least one of my employees with a replacement uniform—which all employees are required to wear during working hours—in order for the employee to finish his shift.

The thing is, I provide each employee with three complete uniforms upon hire. I also replace those uniforms when they become scruffy due to normal wear-and-tear. If an employee damages, loses, or otherwise requires additional uniforms, I make the employee pay for the replacement out of his or her own pocket. While I might make an exception for the above-mentioned practical joke victim, I don’t want employees thinking they can get away with damaging or misplacing their uniforms, and then, expect me to foot the bill for replacements. What does the law say about this?

A.     As a threshold matter, employment lawyers forbid all fun at work.  There are indeed rules regarding employee deductions and uniform costs.  Specifically, Labor Code section 2802 requires that employers cover all necessary expenditures or losses incurred by employees as a direct consequence of the discharge of employee duties or obedience to the directions of the employer.   Accordingly, an employer cannot require an employee to pay for uniforms required by the employer. Although it doesn’t sound like your duped employee meant to damage his uniform, if an employee continually fails to take care of his or her uniform, you may be better off disciplining the employee rather than requiring him or her to pay for replacement uniforms.

If you keep having your employees pay to replace their own uniforms, you could end up with a costly lawsuit on your hands—and that would be no laughing matter.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.