Nonprofits Insurance Alliance

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Does My Organization Really Need an Employee Handbook?

Despite the fact that there are no state or federal laws that require an employer to have and provide handbooks to their employees, it’s almost universally agreed that having and using a well-drafted, comprehensive, and easy to understand handbook serves a number of legal, practical, and risk preventative purposes, and nonprofits are no exception.

Ideally, handbooks not only provide clear and specific information on a large number of important topics to employees, about both their employment and their employer, but they also provide specific notices to the employee about their rights. These often include rights to any job-protected leave, communication of zero-tolerance policies, information on employee benefits, and much more. If applicable, the handbook is also used to establish and clarify the at-will nature of the employment relationship, performance and disciplinary expectations, and policies on vacation and holiday benefits.

However, even well-crafted handbooks can be victims of the passage of time, as well as changes that take place in the law and in the workplace. Regulatory and legislative action can change what an employer is required to do with regard to their employees — often without time to adequately prepare for that change. In their efforts to remain compliant with these changes, employers should be prepared to revise and update any applicable policies in their handbook to reflect new legal realities.

Similarly, if an employer has always had fewer than 50 employees and later increases their workforce to 51 employees, they would then become subject to a number of new laws. The best example would be the fact this employer, who once was not subject to the Family Medical Leave Act (FMLA) leave laws, would now be required to provide their employees FMLA.  In this case, the handbook that never needed an FMLA policy would have to be revised to ensure employees were aware of their newly acquired rights.

Thus, by their very nature, employee handbooks should never be considered “carved in stone.”  They should be reviewed on a regular basis, annually at a minimum. This review should be performed by experienced employment law counsel to ensure that any and all recent legal and workplace developments are taken into consideration in the review and revision process.

 

Rest and Meal Breaks — Rest Means Rest, Not Work!

While the California Labor Code requires employers to provide meal and rest breaks to their nonexempt employees, the pressing needs of the business or urgency in the delivery of services may tempt individuals to forego these breaks.  Recent decisions by the California Supreme Court, however, illustrate that employers should be very careful to ensure employees are free to take these breaks and are relieved of all work duties while those breaks are taken.

The 2012 California Supreme Court case Brinker v. Superior Court clarified that under California law, an employer satisfies their legal obligation to provide a 30 minute, off-duty and unpaid meal break if all of the following conditions are met:

  • The employer relieves the employee of all work duties;
  • The employer relinquishes control over all activities of the employee;
  • The employer permits a reasonable opportunity to take an uninterrupted 30-minute break;
  • The employer does not impede or discourage the employee from taking a 30-minute meal break.

This case also discusses rest breaks that employers are required to provide. An employee is entitled to two paid 10-minute rest breaks if they work a customary eight-hour workday. After Brinker, the issue of whether the rest breaks could be taken while the employee was “on-call” remained undecided. As shown above, this would not ordinarily be permitted in connection with meal breaks.

In the 2016 case Augustus v. ABM Security Services, Inc., the California Supreme Court held that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

The employees, in this case, were security guards who were required to keep their pagers and radio phones on, to remain vigilant and to be available to respond to calls, even during their rest breaks. Quoting the definitions of “rest” from several dictionaries, the Court found that “rest” essentially means free from work.  Since the law provides “rest” breaks, employees must be provided these breaks relieved of all work duties, or the “rest break” has not been provided.

Establish and Follow Policies to Reduce Risk

The consequences for the failure to provide either meal or rest breaks free from any work duties can be costly.  For each missed break the employee is owed an additional hour of pay, and this additional pay must be provided in the employee’s next paycheck.  It’s clear that an ongoing failure to provide these breaks can result in significant liability and many lawsuits that arise from these failures are often class actions that lead to significant financial exposure to the employer.

The rules concerning meal and rest breaks are complicated and subject to a number of exceptions.  The best place to start in reducing the risk from these claims is having a well-drafted policy that properly reflects the rules relating to meal and rest breaks, and to follow all steps to ensure that breaks are provided, taking no action that might deter or discourage employees from taking them and making sure they are relieved from all work duties while on the break.

 

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