NEW RULES EASING ADA CLAIMS ARE ABOUT TO TAKE EFFECT

NEW RULES EASING ADA CLAIMS ARE ABOUT TO TAKE EFFECT
Across the country, labor and employment lawyers are scrambling to prepare their clients to comply with changes to the Americans With Disabilities Act that broaden the scope of who is covered under the law and make it easier for workers to bring claims against employers. Congress passed the ADA Amendments Act in 2008 — and it has been in effect since Jan. 1, 2009 — but the Equal Employment Opportunity Commission (EEOC) published its final regulations and interpretations of the changes only on March 25. Since then, lawyers have issued a flood of client advisories and held webinars, seminars and client training sessions to prepare for a major change in employment disability law. The new regulations go into effect on May 24.

Federal Law Regarding Lunch Breaks

Introduction

One may feel numb or tired working continuously for long hours without having any breaks.  This will obviously reduce the productivity and efficiency of an employee.  Most of the employers may feel happy by seeing their employees working continuously without taking any breaks.  Is it allowed for an employee to take time off from his/her job?  Certainly yes!  A lunch or a meal break is an approved period of time under the federal law.  This Federal law, the FLSA (Fair Labor Standards Act), permit employees to eat or engage in permitted personal activities.

Legal Right of Employees during Work Hours

There is a federal rule that says a break has to be at least 20 minutes long to be a paid one.  Under federal rules only, employers do not need to give most employees lunch or other types of breaks at all.

Lunch and meal breaks are largely a function of state law, which means different states have different rules.  Some states not only require the employer to provide lunch and other breaks, but also imposes very specific penalties for failure to do so.  Understanding your legal obligations as an employer as well as your employees’ legal rights is key to running a successful business.

As an employer, there are two guiding pieces of legislation on employment hours that you should familiarize yourself with – the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA).  Both provide guidance for employers on the rules and regulations that govern employee rights and labor laws with regard to vacation and sick leave, meal and other breaks, as well as flex time.  According to a study, the amount of time people are taking for lunch breaks in the United States is shrinking, thereby making the term “lunch hour” a myth.  Some employers request the lunch to be taken at their work station or not offering lunch breaks at all.  Many employees are taking shorter lunch breaks in order to compete with other employees for a better position, and to show their productivity.

In some places, such as the state of California, meal breaks are legally mandated. Penalties can be severe for failing to adequately staff one’s business premises so that all employees can rotate through their mandatory meal and rest breaks.  For example, on April 16, 2007, the Supreme Court of California, in Murphy v. Kenneth Cole Productions, Inc. 40 Cal. 4th 1094 (2007), held that employers must allow their employees to take time off for lunch or meal breaks.  In Murphy, a former store manager sued Kenneth Cole, a small upscale retail clothing store, claiming violations of wage and hour law and asserting that he was improperly classified as an exempt employee.  After leaving his employment, Murphy filed a complaint with the labor commissioner.  The labor commissioner awarded Murphy unpaid overtime, interest and a waiting time penalty.  The employer appealed. On appeal, Murphy added a claim for unpaid meal and rest periods, pay stub violations and interest and attorney’s fees.  The trial court awarded Murphy unpaid overtime, payments for missed meal and rest periods and pay stub violations, waiting time penalties and pre-judgment interest plus attorney’s fees.  The court of appeal affirmed the lower court’s judgment that Murphy was a non-exempt employee and thus entitled to overtime.  The court of appeal reversed the judgment to the extent the trial court issued an award for missed meal and rest periods for pay stub violations as such claims were not raised before the labor commissioner.  In addition the court of appeal held that the additional payment for meal/rest period violations is a penalty not a wage, and therefore is subject to a one year statute of limitations.  The California Supreme Court, however reversed and held that the additional hour pay provided for in California Labor Code §226.7 constitutes a wage premium payment, which is subject to a three year statute of limitations, not a penalty.

The aftermath of this decision is that, employers now face additional liability when they fail to properly pay employees for not only wages, but also for not providing meal and rest periods as required under the wage hour orders.  One or two missed meal periods, and/or a missed meal period, provides for each one hour of additional pay.

Legal Right of Employers during Work Hours

Although employer’s rights are considered wide with regard to allowing lunch and meal breaks, still they cannot be held liable for actions arising during unpaid lunch or meal breaks on certain circumstances.  When employers allow at least 20 or 30 minutes as breaks for their employees they are free from their liabilities in two different ways.  Firstly, they won’t be penalized for disallowing unpaid breaks for their employees (which is a standard set in labor laws).  Secondly, employers will not be personally liable to pay compensatory benefits for the liabilities incurred by their employees during the course of unpaid lunch breaks. In EMB Contracting Corp., 2008 NYWCLR (LRP) LEXIS 29 (NYWCLR (LRP) 2008), a Workers’ Compensation Board panel affirmed the workers’ compensation law judge’s decision disallowing the claim of a roofer who was hit by a car while returning from his lunch break.  In EMB Contracting Corp., while an employee returning from his lunch break, the claimant was struck by a car and taken to the hospital.  The motor vehicle accident occurred approximately two blocks away from the work site.  In rejecting the claimant’s argument that the accident occurred in the course of his employment, the panel noted that although the employer paid for the half hour lunch break and told the claimant when he should take his break, the employer did not specify where the claimant should eat his lunch. The claimant submitted no evidence of special circumstances that would render the claim compensable, such as a direction on the part of the employer, performance of a duty during the lunch hour, or a lunch period at an odd time caused by something connected with the work.

Therefore, it was held by the court that during the lunch hours in the absence of special circumstances, such as a direction on the part of the employer, performance of some duty during the lunch hour, or a lunch period at an odd time caused by something connected with the work, an employee is not considered to be in the course of his employment when an accident occurs during his lunch hour.

Misuse of lunch breaks by employees will force their employers to terminate their employment.  Moreover, in Grusendorf v. City of Oklahoma City, 816 F.2d 5390 (1987), after signing employment agreement to refrain from smoking during first year of employment, a firefighter was terminated for drawing three puffs on unpaid lunch break after “a particularly stressful day” during the first year of his employment.  Firefighter brought suit based on violation of right to privacy and liberty.  Therefore the United States court of appeals for the federal circuit Court held that, although the court ruled in favor of the employer, the court based its reasoning on the employer’s status as a state agency and applied only a rational scrutiny standard to the employer’s no-smoking policy.  This reasoning may not apply to private employers in part because the 10th Circuit indicated that there is protected liberty interest within the 14th Amendment that protects the right of employees to smoke during non-working hours. Grusendorf, 816 F.2d at 543.

In addition, the Tennessee Supreme Court in Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007), held that injuries sustained during an employee’s lunch break were compensable under the state’s workers’ compensation act.

Employees are not permitted to consume alcohol during their working hours which includes lunch breaks or rest breaks.

Work Break and Meal State Laws

The 22 states listed below have laws that include some sort of provisions for work breaks. Of the 22, only 19 specifically require a rest or meal break for adults, while only 7 specifically require a rest break in addition to a meal break for adults.

California Colorado Connecticut Delaware Illinois Kentucky Maine

Massachusetts Minnesota Nebraska Nevada New Hampshire New York New Jersey

North Dakota Oregon Rhode Island Tennessee Vermont Washington West Virginia Wisconsin

But there’s still room for hope for lunch breaks in different states. Many states have passed laws regarding lunch break requirements. If you work in one of those states, your employer has to make sure that he complies with the state regulations.

Here is a summary of the individual state lunch labor laws. Note that not all industries are required to comply with these regulations in each state.

California – 1/2 hour after 5 hours worked, unless shift is only 6 hours

Colorado – 1/2 hour after 5 hours worked, unless shift is only 6 hours

Connecticut – if shift is 7.5 hours, 1/2 hour lunch after first 2 hours but before last 2 hours

Delaware – if shift is 7.5 hours, 1/2 hour lunch after first 2 hours but before last 2 hours

Illinois – required for hotel room attendants only

Kentucky – reasonable meal period between 3rd and 5th hour of shift

Maine – 1/2 hour after 6 consecutive hours

Massachusetts – 1/2 hour, if work is more than 6 hours

Minnesota – reasonable period, if shift is 8+ consecutive hours

Nebraska – 1/2 hour, off premises, at suitable lunch time

Nevada – 1/2 hour, if work is 8 consecutive hours

New Hampshire – 1/2 hour, after 5 consecutive hours – unless employee can eat while working

New York – 1/2 hour, if shift is more than 6 hours

North Dakota – 1/2 hour, if work is more than 5 hours

Oregon – 1/2 hour

Rhode Island – 20 minutes for 6 hour shift; 30 minutes for 8 hour shift

Tennessee – 1/2 hour, if shift is 6 hours

Washington – 1/2 hour, for 5 hour shift

West Virginia – 20 minutes, if work is more than 6 consecutive hours

Wisconsin- ½ hour after 6 consecutive hours’ work

New Mexico-  ½ hour

Guam- ½ hour, after 5 hours, except when workday will be completed in 6 hours or less and there is mutual employer/employee consent to waive meal period. Time worked is not considered unless nature of work prevents relief from duty.

Puerto Rico- 1 hour, after end of 3rd but before beginning of 6th consecutive hour worked. Double-time pay required for work during meal hour or fraction thereof.

If you have questions about your individual state, you should contact your state’s department of labor.

If your state isn’t listed, it means that there is no state law that specifically addresses work breaks or meals.

Even if your state doesn’t have a law that specifically addresses work breaks or meals, it might have related regulations or guidelines that do.  Alternately or additionally, your municipality might have a work break law or related orders, regulations or guidelines. To find out, start by contacting the relevant state labor department.

Employers may grant more work breaks or those of longer duration than state or municipal laws require, but not fewer or of shorter duration.

In states and municipalities where there are no laws or related regulations or guidelines with work break or meal provisions, under the FLSA work break and meal periods are a matter of voluntary agreement between employers and employees or employers and unions.

If your employer is violating work break or meal provisions in state laws or the FLSA, the relevant state labor department might help you to right the wrong.

Payment for Break and Meal Periods: Under 29 CFR 785.18 (Code of Federal Regulations) breaks of five to twenty minutes must be paid by the employer while, for a meal period to be unpaid, has to be at least 30 minutes uninterrupted by work. Note again, however, that federal law does not mandate breaks or meal periods.

Conclusion

If you are human, you have to eat.  If you have a job, you will probably work several hours during the day, most likely across the normal lunch time.  Thus, you probably wonder about lunch labor laws.

Hourly workers are most concerned about the law regarding their lunch breaks, but a recent study found that 90% of salaried workers held an hourly job at one time in their life.  The Fair Labor Standards Act (FLSA) does not require that meal or rest breaks be given. Short breaks (five to 20 minutes), however, which are given to employees as a matter of company policy, are generally considered to be compensable and to count toward the 40-hour workweek.  That policy must be clear and specific on taking breaks, and employees are not entitled to extend these breaks and receive compensation without prior authorization. Companies that offer short breaks as a matter of policy should be clear and specific about time and frequency, and must then count that time as part of the regular workday.

Those states which do not have any laws regarding breaks or meal periods, then those benefits are a matter of agreement between the employer and the employee.  Failing to adhere to state laws concerning breaks can be costly.  Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 922 A.2d 710, 2007 LEXIS 599 (N.J. 2007).  In Wal-Mart, the subject of the issue was a several multimillion dollar lawsuits for failing to give workers mandated breaks and for forcing workers to work off the clock. If a lunch break is considered compensable because the employee is not completely relieved of duties, the extra time worked may be compensable as overtime under federal law.  Furthermore, the New Jersey Supreme Court, in Wal-Mart, permitted two former employees of Wal Mart to proceed with a state wide class action on behalf of some 72,000 employees in which the class representative allege that they were denied required rest and meal breaks, and were forced to work “off the clock”.

Mediation In The Boardroom

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by Clive Lewis  December 2010

Clive Lewis specialises in mediating workplace and employment cases and has been mediating disputes since 2002. His qualifications include an MBA, CEDR and ADR Group Mediator Accreditation and membership of the Chartered Institute of Personnel Development (CIPD). He has mediated hundreds of disputes. He was an advisor to the Department for Business and the CIPD on the Gibbons review of simplifying UK workplace disputes processes. His book ‘The Definitive Guide to Workplace Mediation and Managing Conflict at Work’ was published in January 2009. Clive is a Board member of the Civil Mediation Council and chairs the Council’s Workplace Committee. Clive writes the employment and workplace mediation documentation for the legal website Practical Law Company.”

The management of conflict at work probably represents the biggest unrecognised area for cost savings and market differentiation for organisations today. There is a proven business case for managing conflict at work. To date though, suppliers of mediation services have had limited success in persuading executives to fully engage adopting mediation and conflict resolution strategies. There are a few reasons for this.

First, it can be easy to ignore, avoid or simply put off dealing with conflict. It is one of those matters that require a large amount of energy and effort to deal with. It is often much more convenient to do something else. Secondly, acknowledging that conflict is present can be seen as recognition of failure. Few people, particularly senior managers want to be associated with failure. Third, some problems can go away quickly if you throw money at them. This is far easier to do in the private sector and probably explains why the public sector accounts for around 75% of the revenue related to the workplace mediation market. It also probably demonstrates why three quarters of disputes going to Employment Tribunals are linked to the private sector. Fourth, is a lack of understanding in the board room about how the impact of conflict affects the bottom line. Examples include a decrease in productivity, employee engagement, employee attraction and health & well-being. There is also likely to be an increase in sickness and absence rates, customer complaints, employee turnover and legal fees. On this last point, recent figures indicate the cost of legal fees continue to rise with the average company spending £5.8m on legal fees every year.

Employment Tribunal statistics for 2009/10 highlight a 56% increase in claims year on year. Three of the main increase claim areas are redundancy, breach of contract and unfair dismissal. Dealing with the effects of disputes takes valuable time of team members often meaning that they have to postpone working on value-add areas.

Tension exists at board level too. It can be a prerequisite that part of the criteria for becoming a board room member is that individuals aren’t backward in coming forward. The added dimension about conflict in the boardroom is that it can spill over to affect various parts of the organisation. For example, if team members get wind of the fact that their boss is engaged in conflict with a colleague it can mean that they take sides with their leader. In extreme cases, silos may develop as whole functions may refuse to collaborate with each other out of a sense of loyalty.

The mediation process

Mediation is a tool that increasing numbers of organisations are using to help resolve disputes. In mediation, a neutral, independent third party facilitates a process to help parties find a solution to problem. Some advantages of mediation are that:

• It’s quick – Most mediation sessions last around one day compared to 12 days to managing a case that is going to an Employment Tribunal
• It saves money – issues can be settled quickly and can avoid further direct and/or indirect costs
• It doesn’t stop you litigating – your statutory rights are not affected by participating in mediation
• It’s not soft and fluffy – mediation is hard work and can focus on pragmatic and commercial solutions

The mediation process is voluntary, confidential and without prejudice. The mediator is neutral and impartial.

Mediation has both operational and strategic dimensions. At the operational level mediation can help get parties talking again. At a strategic level, mediation can help identify organisational learning needs and reduce business risk. An example of this latter aspect can be seen as part of the costs of some of the strikes that have hit the UK recently. As well as the direct costs flowing from the disruption of a strike, an organisation may loose corporate customers forever and associated goodwill. Conflict represents a significant risk for organisations.

Mediation in the boardroom – the benefits

Operational Level

• Solves disputes
• Gives line managers their time back
• Improves customer service
• Reduces absence
• Improves team work
• Gets people talking again

Strategic level

• Helps organisational learning
• Helps form succession planning
• Improves productivity savings
• Increases the likelihood of achieving organisation objectives
• Enhances competitiveness
• Improves employee engagement
• Improves organisational health and well-being
• Can be linked to operational and financial reviews
• Compelling business case for corporate and social responsibility
• Reduces business risk

Case study

Pursar Technologies is a FTSE 250 global business. A dispute developed between its marketing director, customer service director and chief technology officer. The background to the dispute was that the customer service director sent an email to the chief executive with a proposal on direction for the company. The marketing director and chief technology officer were copied in. The marketing director replied to everyone in the email asking the customer service director to explain why he had proposed an idea about how the company should be adjusting its marketing strategy without discussing it with him first. The situation was made worse when the chief technology officer indicated that he would adopt a third marketing strategy. There was a big fall out. The chief executive decided to let the three of them sort it out. They couldn’t and eventually stopped talking to each other. They also stopped making joint visits to customers and collaborating on organisational initiatives.

Customers began to be negatively impacted and the sales pipeline started to slow down. Three months later the chief executive realised that something needed to be done about it. He engaged the services of a mediator. The mediator was locked in a room with the three executives for three hours. When the parties emerged they had agreed to put the dispute behind them. Apologies had been exchanged and it was back to business as usual. The chief executive was astonished. He was amazed that three months of stand off could be settled with a three hour conversation. He also realised that the organisation had paid a huge price for pontificating over a dispute that could have been nipped in the bud as soon as the original email had been sent.

Mediation can, therefore be a like a double edged sword. On one side it can be used to help get senior executives talking again. On another level it can be used to help build organisational capability, reduce organisational risk and increase competitive advantage.

Mediation in any organisation is unlikely to be highly successful unless members of the board understand its benefits and are willing to engage in mediation themselves when trouble strikes.

I end this article as I started. The management of conflict probably represents the biggest unrecognised area for organisational cost savings and market differentiation for organisations today.