News, Articles & Updates

Employers Guidelines on Rest Breaks And Meal Periods On The Horizon

A California Supreme Court Opinion Should Clarify Whether Employers Must Ensure That Employees Take Their Rest Breaks And Meal Periods.

Employers are often confused to whether they must allow employees to take their rest breaks and meal periods or if they have a higher duty to ensure that employees take these rest and meal periods.  The California Supreme Court recently agreed to hear a case that should clarify this grey area.

The case before the California Supreme Court, Brinker Restaurant v. Superior Court of San Diego, addresses how employers must comply with California laws governing rest breaks, meal periods, and off-the-clock work.

The California Court of Appeal issued its opinion on this case in July and it held that employers are only required to provide employees with their rest breaks and meal periods.  It further decided that employers are only liable for employee off-the-clock work if the employer knew or should have known that such work was taking place.

The state supreme court will review the court of appeal’s Brinker decision on November 8, 2011 and will issue its opinion within 90 days.

How does this affect your business?

Failure to comply with state rest break and meal period laws often results in legal problems for employers.  Therefore, the California Supreme Court’s decision will be helpful to employers by proving more guidance on how to comply with state laws on rest and meal periods, as well as off-the-clock work.

Once the California Supreme Court issues its opinion, employers should evaluate whether their rest break and meal period policies comply with the Court’s ruling.  Further, employers should also ensure that employees are not completing off-the-clock work.

The Mitzel Group, LLP will keep you updated on the status of this case.  You may also contact us for further information about rest break and meal period policies at

Employers Not Always Responsible For Employee’s Legal Expenses

Employers Not Required To Compensate an Employee Against Whom They Bring An Unsuccessful Lawsuit (Nicholas Laboratories, LLC v. Chen)

A recent California Court of Appeals’ ruling allows employers to bring a claim against their employees without fear of having to pay the employee’s attorney’s fees if the claim is unsuccessful.

Section 2802 of the California Labor Code requires an employer to indemnify its employee for all expenses incurred by the employee in direct consequence of the discharge of their duties.

This section of the Labor Code is generally known to cover claims brought by a third party against an employee for acts arising out of the employee’s course of employment.  However, prior to the recent ruling a question of whether the provision covered charges by the employer against the employee for those same acts remained.

The Court of Appeals holding makes it clear that Section 2802 only covers claims brought by a third party against the employee and does not extend to claims between the employer and the employee.  This decision supports the prevalent view in the country that each side to a lawsuit should pay their own fees unless a specific law or contract says otherwise.

How Does This Affect Your Business?

Employers will not have to indemnify employees for litigation costs if the claim is between the employer and employee and involves acts arising out of the employee’s employment.  Employers will have to indemnify employees for legal expenses arising out of a claim by a third party that is based on the employee’s actions during course of employment.

For more information about claims against employees, please contact us at

UPDATE: New Bill Increasing Penalties for Willful Misclassification of Individuals as Independent Contractor Signed

Employers Must Ensure that Their Classification of Employees or Independent Contractors is Accurate

Governor Jerry Brown signed California Senate Bill 459 into law on October 9, 2011. This bill becomes effective on January 1, 2012. The purpose of the bill is to prohibit employers from willfully misclassifying individuals as independent contractors and it imposes steep penalties for doing so.

Under existing law employers have different obligations to individuals depending on whether the person providing services is an independent contractor or an employee. Therefore, in order for a an employer to lawfully fulfill its duties on issues such as wages and other compensation, working hours, workers’ compensation, labor code violation actions, employment contracts, and working conditions standards it is imperative that individual are correctly classified.

Generally, and independent contractor is “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” California Labor Code section 3353.

Senate Bill 459 imposes penalties for first time offenders of $5,000 to $15,000 per violation, and increases these numbers by an additional $10,000 each if an employer repeatedly willfully misclassifies individuals.

In addition to employers being held responsible for proper classification, any person (other than an attorney or employee providing advice to the employer) who aids in willful misclassification can be held jointly and severally liable for doing so. This bill also places requirements relating to the preservation of records, notice posting, and providing of forms to independent contractors on employers.

How Does This Affect Your Business?

Willful misclassification of individuals as independent contractors could prove to be extremely costly to employers. Proper classification of all individuals is a crucial first step to ensuring compliance with all employer/employee related issues. Without doing so it is virtually impossible to properly abide by governing rules, such as wage and hour laws, as well as the others listed above. Even more than encouraging legal compliance with existing laws, this new bill makes willful misclassify alone punishable.

If your company works with independent contractors and would like to speak with an expert to ensure individuals are properly classified, please contact us at

High Standard Set for Employers To Take Advantage Of “Learned Professional” Exemption To Overtime Pay Requirements

Federal Court Finds Social Workers Do Not Qualify Under The “Learned Professionals” Exemption to FLSA’s Overtime Pay Requirement (Solis v. State of Washington DSHS)

The Fair Labor Standards Act of 1938 (“FLSA”) dictates that employers are free from certain overtime pay requirements if an employee falls into, among others, the “learned professional” exemption. Generally, under the FLSA employees must be compensated for all hours worked in excess of forty per week unless an exemption applies.

To qualify for the “learned professional” exemption, an employer must show that 1) the employee performs work requiring advanced knowledge; 2) the advanced knowledge is in the limited fields of science or learning; 3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

The Court has opted to construe the “learned professional” exemption in an extremely narrow manner and it may not be applied to employees who merely have a basic understanding or background of a subject matter. Additionally, the advanced knowledge requirement cannot be satisfied by experience alone rather than through “advanced specialized intellectual instruction.”

In determining whether or not a specific employee falls within the exemption, courts look to his or her job description for guidance. Positions which require a minimum number of course hours or a specific degree closely related to the position are more likely to be eligible for the “learned professional” exemption. Those which broadly call for any degree, or a degree in a wide area, are far less likely to be deemed appropriate for this classification.

For example, if the job description for a social worker position calls for a degree in anthropology, education, or criminal justice, absent more specialized course work requirements, it will not be considered a “learned professional” position.

How Does This Affect Your Business?


Carelessly crafted job descriptions could lead to legal problems for employers. Employers should take a close look at the job requirements and the skills necessary for an employee to fulfill his or her duties. If specialized intellectual knowledge is determined to be a requirement of a position, then an employer should craft the description to reflect this. Absent doing so, an employer may not qualify for the “learned professional” exemption or be able to adequately defend itself for doing so, should the need arise.

If your company works with “learned professional” employees, or would like guidance on how to properly qualify for this exemption, please contact us for more information at