DLSE quickly updated (pdf, doc) its Enforcement Policies and Interpretations Manual to reflect the decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) (2008) ___ Cal.App.4th ___. The decision was just three days when the revisions went into effective. Opinion Letter 1999.02.16 has been withdrawn.
The DLSE is now taking comments. If you believe that a section of the Enforcement Policies and Interpretations Manual or an opinion letter needs to be reviewed to determine if it should go through the regulatory process pursuant to the Administrative Procedures Act, you can submit comments to dlsecomments@dir.ca.gov. Any inquiries should mention a specific manual section or opinion letter number and explain specific concerns. The Division of Labor Standards Enforcement - Comments mailbox account has been established solely to take comments on the enforcement manual and opinion letters. All comments will be read and considered, but no responses to questions or specific advice will be provided.
it's bizarre the speed Arnie and the top DLSE staff jumped on this (e.g., we've been waiting months for the federal DOL to define "qualifying exigency" for military servicemembers under the FMLA; where's the priority?). even the management lawyers (littler, etc.) are warning clients to be slow to adopt this likely-reviewed decision.
i note potential mischief with the "no major fraction" rule, since it appears you can assign (and pay for) a 7:50 shift for non-exempts with only one paid rest break.
previously, a 9-5:30 shift needed two paid rest periods (total 20 min paid) and one meal period (30 min unpaid), meaning eight hours wages for 7:40 worked (even though paid breaks are considered "hours worked"); the same would be true if you had a 7:50 shift (under the "old" major-fraction rule).
now, however, you can do a 9-5:20 shift with one paid rest period (10 min paid) and one meal period (30 min unpaid), meaning seven-hours-fifty-minutes pay for 7:40 worked.
basically, you get to send them home 10 minutes early, and they get an unpaid break on their commute. employers get a full day's work out of employees, but save 10 minutes' pay.
no wonder they like it so much.
Posted by: kent | July 29, 2008 at 12:58 PM
Does anyone know if an employer can "dock" an exempt employee's pay if they are absent by reason of illness and they have exhaused their sick leave?
Posted by: Claudia Morehead | January 21, 2009 at 12:53 PM