Leadership Exchange - August/September 2011 - (Page 12)

HUMAN RESOURCES SECRUOSER NAMUH HR CHALLENGES Jan C. Christensen jan.c.christensen@gmail.com 310-480-3774 ney’s request to complete a project prior to leaving for lunch or when a non-exempt employee eats a quick lunch while working at their desk. Are prospective employers required to disclose negative references to a candidate? SHORT ANSWER: No, unless the reference was provided by a consumer credit report or by the more comprehensive investigative consumer report which are subject to both federal and California law. There are no federal or California laws requiring employers to check a job applicant’s personal or professional references. However, most employers as minimum “due diligence” inquire and document responses of former employers as a safeguard against a wrongful hire allegation and as a tool to help determine a fit for the available position. Before investigating information provided on an employment application, employers should require applicants to sign a waiver authorizing the verification of the information provided. (Generally, the reference check waiver will be included above the signature line on the employment application.) Employment attorneys have successfully convinced many employers to avoid potential liability by refusing to provide information about former employees despite the fact that there are laws protecting employers who provide truthful feedback to reference requests. At the least, employers should try to elicit a response to the question: “Is the former employee eligible for rehire?” An employer who does not hire an applicant due to information gleaned from public records MUST provide the applicant a copy of the public record even if the applicant waived the rights to receive the copy. CAUTION: In checking references, employers should limit their inquiries to job-related information to avoid the potential liability of disparate impact. What are the most common performance appraisal techniques? A performance appraisal, aka employee evaluation, performance review, etc. “is a method by which the job performance of an employee is evaluated (generally in terms of quality, quantity, cost and time) by the corresponding manager or supervisor. It is the process of obtaining, analyzing and recording information about the relative worth of an employee to the organization. Performance appraisal is an analysis of an employee’s recent successes and failures, personal strengths and weaknesses and suitability for promotion or further training. It is also the judgment of an employee’s performance in a job based on considerations other than productivity alone.” Greater Los Angeles Leadership Exchange Is there a penalty of one hour pay at straight time if a non-exempt employee takes their meal break after working five hours? I know that if they miss their meal break, they get one extra hour of pay at straight time, but I need clarification when they take a late meal break. California employers are required to provide non-exempt employees an opportunity to take a 30 minute meal and rest break when they work more than five hours in a day. (That requirement can be waived by the employee if the total workday does not exceed six hours.) That meal break must begin no later than 4 hours and 59 minutes after the beginning of the workday. Based on the California Labor Code, it appears there are only two circumstances when the rules regarding meal breaks may be voluntarily waived: 1. When the employee works only a six hour day; 2. Under certain circumstances, an employee working less than twelve hours in a workday. However, there are numerous federal court decisions as well as California court decisions like the Brinker Restaurant v. Superior Court and Hernandez v. Chipotle Mexican Grill that held that employers only have to provide employees the opportunity to take their meal breaks and are not responsible for ensuring meal and rest breaks are taken. Until there is higher court clarification, employers might assume that when an employee voluntarily refuses to ignore the meal break rules there is no penalty owed by the employer. (Employers should consult with legal counselbefore taking this position. Employers should note that these decisions apply only to a straight time penalty and do not alter the California overtime rules for time worked in excess of eight hours.) Whether or not a one hour straight time penalty is due the employee who takes a late lunch break would depend on whether or not the “delayed lunch” was totally voluntary and whether the employer elects to rely on relevant court decisions. NOTE: A “voluntarily” delayed lunch would not be considered voluntary when a secretary or paralegal is responding to an attor- 12

Table of Contents for the Digital Edition of Leadership Exchange - August/September 2011

Leadership Exchange - August/September 2011
Robert Half Legal
Member Connection Campaign
President's Message
Editor’s Message
Region 6 Officers
August Calendar
September Calendar
Save The Dates
September Chapter Meeting Notice
2011 Justice Jog Law Firm Challenge
Human Resources
Certified Document Storage & Destruction
Business Partner/Member Mixer | Justice Jog Kick-Off
Members-In-Transition Welcomes You
GLA ALA Section Reports
American Language Services
Merrill Corporation
New Members & Member Updates
Region 6 Conference
New Member Spotlight
New Member Drive Contest
Information Technology
June Chapter Meeting Recap
New Member Orientation Invite
Community Outreach Program
2011 Justice Jog
First Legal Network
Past-Presidents Evening Seminar Recap
Iron Mountain
Special Counsel
SOS — Succeed Over Stress
Innovative Computing Systems
GLA ALA Essay Contest
Board of Directors
Office Space Available Ad
Esquire Innovations, Inc.
Ricoh Legal/Ikon
Pride of Los Angeles
Technology Tip
CBM Services
Davidson Legal Staffing
Coach’s Corner
ESP Legal Technology
Business Partner Spotlight
ALA Webinars
ALA Legal Marketplace

Leadership Exchange - August/September 2011