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Rest Break Reminder

A few months ago I wrote about Augustus v. ABM Security Services, where the court said employer must relieve employees of all duties in order for a rest break to be valid. ABM required the security guards to carry pagers, radios or cell phones during breaks. The court concluded on-call rest breaks are the same as no rest breaks.

Revision to Rest Break Decision

The California Supreme Court revised the opinion slightly, but the holding still stands.  The court changed final sentence in the Conclusion and so that the complete Conclusion now reads as follows:

California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.  The trial court’s summary adjudication and summary judgment orders were premised on this understanding of the law.  Rightly so: Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call.  A rest period, in short, must be a period of rest.  We accordingly reverse the Court of Appeal’s judgment on this issue.  The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.

This is not a big shocker, but it is language to remember. Employees must receive duty-free rest breaks. Employers cannot exercise any control over the employee during the rest break. Companies should review their rest break policies to ensure they are relieving employees of all duties during the rest breaks.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Home Care Companions Are Entitled to Overtime Under the FLSA

A D.C. Court of Appeals confirms that home care companions are entitled to overtime under the FLSA.  The appellate court confirmed that home care agencies and families using caregivers must pay overtime unless the employee meets the narrow “companion” definition.  The new regulations gained a lot of press in late 2014 and early 2015 when the regulations were set to go into effect.  A D.C. Circuit court judge held the provisions invalid, and stayed implementation of the new regulations.  The Department of Labor appealed, and many have been waiting to see what the appellate court will do.

Home care companions are entitled to overtime under the FLSA

The appellate court issued its decision in Home Care Association of America, et al. v. David Weil on August 21, 2015.  The appellate court disagreed with the lower court’s analysis, and found the regulations enforceable.  What does this mean for California employers (at least until the case is appealed to the Supreme Court)?

California and federal rules are different

The federal companion regulations mark one of the first instances where the federal wage and hour laws are more strict than California’s wage and hour laws.  Under California law, caregivers–which California usually calls personal attendants–are only entitled to overtime when they work more than 9 hours in a day or more than 45 hours in a week.  Those same home care companions are entitled to overtime under the FLSA after working 40 hours in a week.  This means many California caregivers will receive overtime after 9 hours in a day or after 40 hours in a week.

The definition of companion is also more limited than California’s personal attendant exemption.  Federal companions cannot spend more than 20% of their time providing care (e.g., assisting with the activities of daily living).  Their primary job is limited to providing fellowship and protection.  California’s personal attendants are allowed to spend 80% of their time providing care, fellowship and protection.

Another major difference between federal and state law is that, under the federal regulations, companions employed by third party care agencies can never be exempt from the FLSA.  California law does not differentiate between private employers and third-party employers.

If you or someone you know has questions about caregiver overtime rules in California, contact the Nuddleman Law Firm, P.C.  Robert Nuddleman assists families, care agencies and caregivers understand the law and ensure employees are paid correctly.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.