California Employment Law

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I had a couple of employees who I caught stealing clients…

I had a couple of...
I had a couple of employees who I caught stealing clients and servicing them outside our facility. I planted a mole on which they took the bait. I confronted them about it. After that they resigned. 2 weeks later I got a lawsuit filed against the company stating that Meal/Restbreak violations, manipulation of time clock, non discretionary bonus violations. It feels like retaliation. What is my best defense on this to get it dismiss?
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Answered in 8 hours by:
3/11/2018
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 14,405
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Section 2863 of the California Labor Code states, “An employee who has any business to transact on his own account, similar to that entrusted to him by his employer, shall always give the preference to the business of the employer.” In addition, Section 2860 of the California Labor Code explains that “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.”

You could certainly attempt to countersue based on violation of these statutes. In terms of the rest/lunch break claim itself, CA law does require employers to provide unpiad 30 minute lunch breaks for employees who work shifts over 5 hours. The law also requires unpaid 10 minute rest breaks every 4 hours or major fraction thereof (i.e. a shift of 6 hours would require 2 ten minute paid rest breaks-- one for the first four hours and another for the second two, since two is a major fraction of four). The best defense is typically to allege that employees had the opportunity to take these breaks and chose not to. This is due to the CA Supreme Court's ruling in Brinker Restaurant Corp. v. Superior Court, which held that employers have to make breaks available but do not have to "ensure" they are taken.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

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Hello again,

I just wanted to followup because this question was still open and I have not heard back from you. Was there anything more I can do to assist you? Did you get a chance to review my answer to your question? Please let me know....

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Customer reply replied 4 months ago
Thank you Atty Patrick, am trying to find an answer on Paid lunch breaks which we offer our employees, since they are considered incentives, are they part of the total hours work by the employee?

Thank you.

Well a "paid" lunch break by definition would be part of the total hours worked. However, the problem is that unless you are fully relieve the employees o their job duties during these paid lunch breaks and allow them to leave the work site, you still likely are not in compliance with the law, as the law REQUIRES employers to provide lunch breaks in which employees are completely relieved of all job duties for at least 30 minutes and allowed to leave the work site. The only exception to the requirement that employees be completely relieved of all job duties during their lunch breaks, according to the DLSE, is if "the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time."

I hope this helps to clarify.

Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 14,405
Experience: Significant experience in all areas of employment law.
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Patrick, Esq. and 87 other California Employment Law Specialists are ready to help you
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Customer reply replied 4 months ago
Hi Atty. Its a paid lunch break and they are relieve of all their duties and they leave work and clock out. So I think it counts more on an incentive and not included in the hours. Thank you.

I would agree, a policy such as you describe where you are paying for their lunches but still allowing them to take the time off for lunch would not violate any law and in fact would go above and beyond what the law requires.

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Customer reply replied 4 months ago
Thank you Atty Patrick. Have a great evening

You as well!

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