The Curse of the Blackberry

Blackberries and take-home laptops are all too common in the workplace today. Studies have shown that 50% of workplace email users check work-related email on the weekends; 34% say they check email on vacation. Many employers expect and even require their employees to read and respond to work-related emails when not at work. Problem arise when these policies are applied to hourly employees – salaried employees are generally expected work as long as the job requires.

There are of course two schools of thought on the issue. Employees feel like employers are getting a free ride by not paying for this off-hour activity. Employers respond by arguing that employees cannot be expected to be paid around-the-clock, 24 hours a day, simply because they have a cell phone.

Regardless of the viewpoint, the problem appears to be getting worse. In today’s job market, employers require fewer employees to do more, and attempt to squeeze maximum productivity from a minimum number of workers. Also, workers remain less likely to complain about after-hours work so they can keep their hard-to-come-by jobs.

That hasn’t stopped some workers from challenging the practice in the courts. Recent lawsuits against T-Mobile and CB Richard Ellis Group involve legal claims that hourly workers should be paid for time spent responding to work emails during off hours. The outcome of these cases will provide much needed guidance for employers and employees alike. This issue has shown that the wage and hour laws are getting behind the times – thus, it might be time for the Legislature to get involved to clarify the issue. Because, as we all know, the Blackberries aren’t going anywhere.

Getting Meal and Rest Breaks Right

Virtually all employers understand that their employees are entitled to breaks throughout the day. However, California’s regulations regarding meal and rest breaks are more involved than would appear. Penalties can be stiff for violations of these rules, so it behooves all employers to understand them.

Employers in California must provide non-exempt employees rest breaks of at least 10 minutes for each four hours worked. An employer must also provide a meal break of at least one half-hour for every work period more than five hours. During the meal break the employee must be relieved of duty and free to leave the premises. A second meal break is required if the employee’s work day is longer than 10 hours. Yet if an employee’s shift is six hours or less, the employee can choose to forego the meal break.

California Labor Code section 226.7 provides that if an employer fails to provide employees with these meal and rest breaks, the employee is owed “one hour of pay” for each missed break.

With respect to the penalty, rest breaks and meal breaks are different. With rest breaks, the employer is required to authorize and permit all employees to take the rest periods. An employer is not required to pay for the missed rest break if the employee, who was truly allowed and authorized to take the rest break, freely chooses to forgo it. Meal breaks are different, however. The employer has an affirmative obligation to ensure that workers are actually relieved of all duty during lunch breaks. Thus, it is the employer’s duty to allow employees to take rest breaks, and to ensure that employees take meal breaks.