September 4, 2012, 2:41 pm
1. On the lighter side, a customer came into our establishment in California the other day with a horse. Claimed it was a "therapy animal" and therefore it would be a violation of the ADA to not allow the horse in. Not knowing the law but with some experience with California, my managers rightly let the animal in, then researched it later. It appears that we are safe denying entry to animals that are not licensed service animals, but this is an evolving part of the law, apparently. Since it costs us about $25,000 a pop to get even the craziest suits dismissed in California, we will continue to err on the side of caution.
2. Perhaps even crazier, we recently were forced to institute an HR policy in California that working through lunch is a firing offense. One warning, then you are gone. Why? California has a crazy law that allows employees to collect substantial ex post facto compensation if they claim they were denied a 10 minute break every four hours or a thirty minute unpaid lunch break after five. Suffice it to say we have spent years honestly trying to comply with this law. The 10-minute break portion is less of a compliance hurdle, but the lunch break portion has caused us no end of trouble. Theoretically, under the law, the employee has a choice - work through lunch paid, eating at the job post (e.g. in a gatehouse of a campground) or leave the job post for 30 minutes for an unpaid lunch break. As background, every one of our employees have always begged to have the paid lunch because they are from a poorer area and need the extra 30 minutes of pay.
Unfortunately, it does not matter what preferences the employee expressed on the job site. In the future, the employee can go to the labor department and claim he or she did not get their break, and even if they did not want it at the time, and never complained to the employer about not getting it, the employer always, always, always loses a he-said-she-said disagreement in a California Court or review board. Always. Sure, it takes someone utterly without honor to make this claim in Court, but there seems to be no shortage of those. So, we took a series of approaches to getting people on-paper, on-the-record as having asked to work through lunch. Unfortunately, one court case after another has demolished each safe harbor we thought we had.
A few weeks ago I was advised by a senior case-worker at the California Department of Labor that the only safe harbor left for employers is to FORCE employees to take an unpaid lunch. This means they clock in and back out, this means they have to leave the job site (because if a customer happens to ask them a question, then they are "working"), and this means we have to ruthlessly enforce it. Or we are liable for scads of penalties. So, we find ourselves at the bizarre crossroads of making working through lunch a firing offense, and employees who generally want to work an extra thirty minutes each day to earn more money are not allowed to do so. Yet another example of laws that are supposed to be "empowering" to employees actually ending up limiting their choices.
