California’s meal period rules generally prohibit employers from having employees work more than 5 hours without providing a meal period of at least 30 minutes. However, the Wage Orders do recognize an exception to this rule where (1) the nature of the work performed by the employee prevents him/her from being relieved of all duty; and (2) the employee and employer agree in writing to an “on-duty” meal period.

It is important to bear in mind this is not a waiver of the meal period. A couple of additional points:

• The written agreement must clarify that the employee will be paid for his/her “on-duty” meal period.
• The written agreement must expressly state that the agreement may be revoked by the employee at any time. I would also include the buzzword “voluntary” in any agreement that I drafted.

A persistent question is when does “the nature of the work” performed prevent the employee from being relieved of all duty for at least 30 minutes. Department of Labor Standards Enforcement (DLSE) opinion letters and case law suggest this determination must be made on a case-by case basis. Employers who avail themselves of this meal period exception should be wary of any kind of “blanket” application of the “on-duty” meal period for all employees, restricting its use to only those situations in which the employer can make a colorable argument that a normal, “off-duty” meal period is unrealistic.

California employers should be aware of significant new state laws which take effect on January 1, 2014. These include:

Protected Categories Expanded to Include Military and Veteran Status. – Assembly Bill 556 adds “military and veteran status” to the list of categories protected from employment discrimination.

Prohibition of “Unfair Immigration-Related Practices” – Assembly Bill 263 prohibits employers from engaging in “unfair immigration-related practices,” which could include contacting or threatening to contact immigration authorities, because an employee asserts protected rights under the California Labor Code. Other immigrant protection legislation effective Jan. 1, 2014 includes SB 666 (business license revocation for threatening to report immigration status), and AB 524 (authorizes criminal extortion for threatening to report immigration status).

Domestic Worker Bill of Rights – Assembly Bill 241 creates a Domestic Worker Bill of Rights. This provides specific overtime pay for a “domestic work employee who is a personal attendant.” The bill has many specific definitions and exclusions.

Heat Illness Recovery Periods – Senate Bill 435 expands meal and rest break prohibitions to include “recovery” periods necessary to prevent heat illness. Penalty mirrors premium for failing to provide meal or rest breaks (i.e., one additional hour of pay for each workday that meal, rest, heat illness recovery period not provided). Unlike the meal and rest period rules which provide a clear guidance on timing, however, the need for a heat illness recovery period is subjective and determined by the employee. Employers with outdoor workers need to ensure their Heat Illness Prevention programs comply with Cal-OSHA regulations.

Leaves Required for Victims of Certain Crimes – Two important new laws. Senate Bill 288 provides protections for victims of certain crimes (including solicitation for murder and vehicular manslaughter while intoxicated) who take time off from work to appear in court proceedings. SB 400 extends protections for victims of domestic violence or sexual assault or victims of stalking, including time off to appear at legal proceedings and to seek medical/psychological treatment. This law adds a reasonable accommodation requirement—which can include implementation of safety measures—for victims of domestic violence, sexual assault or stalking.

Expanded Scope of Whistleblower Protections – California Labor Code Section 1102.5 already provides protections for employees who report violations of federal or state statutes. Senate Bill 496 expands this protection to include suspected violations of a local rule or regulation, and will include reporting violations to “a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”

As the ink from California Governor Jerry Brown’s pen dries on Assembly Bill No. 10, which will raise the hourly minimum wage in our state to $9.00 effective July 1, 2014 (and again to $10.00 on January 1, 2016), employers need to consider the ramifications of this change beyond the obvious increase in take-home pay of hourly workers.

Here are key areas that will be impacted by the increase:

Salary Basis Test For “White Collar” Exemption – In addition to meeting other criteria to qualify as an exempt employee under one of the “white collar” exemptions (i.e., executive, administrative or professional), exempt employees must earn a salary that is at least twice the minimum wage for full-time employment. This minimum increases in July, 2014 to $37,440, and to $41,600 beginning in January, 2016.

Commissioned Sales Employee Exemption – To qualify for this exemption, employees must earn in excess of 1.5 times the minimum wage for all hours worked. This rate will increase to $13.50/hr on July 1, 2014, and $15.00/hr on January 1, 2016.

Employees Who Furnish Own Tools or Equipment – When employees are required to furnish their own tools or equipment necessary to their performance of the job, they must be paid twice the state minimum wage. This rate will increase to $18.00/hr on July 1, 2014, and $20.00 on January 1, 2016.

Calculation of Overtime, Vacation, Sick Leave, Paid Time Off and Meal and Rest Period Premiums – Employers must adjust how these are calculated to reflect the minimum wage increase.

Employer-Required Split-Shift Premiums – If an employer requires an employee to work a split-shift, the employer must pay the employee a premium, of one hour’s pay at minimum wage, in addition to the employee’s regular earnings paid for that shift. (If hourly wage exceeds state minimum wage, difference may be credited toward split-shift premium.)

Voluntary Crediting Agreements – Employers with written agreements with their employees for crediting meals or lodging expenses against the minimum wage will need to adjust this crediting to reflect the increase.

Posting The New Wage – Employers will be required to conspicuously post the new wage in an area frequented by employees where it may be easily read during the workday.

Cities With Higher Minimum Wage – Certain California cities, including San Francisco and San Jose, may impose a higher minimum wage and/or adjust their minimum wage more frequently. Employers should ensure they comply with all applicable federal, state and local laws.