I’ve spent the better part of three years attempting—sometimes even successfully—to keep the North Bay business community informed of employment law developments, in columns that, from time to time, have been interjected with dashes of brilliant humor.1
Frankly, its not particularly easy; each column requires not only a subject matter that business owners might be interested in, but also development of some “hook” that can lend itself to some humorous spin, rant, critique or lazy one-line insults.2 It’s only by the grace of good fortune that the last three years have involved the likes of medicinal marijuana, hidden video cameras in private employee offices, a constant debacle over rest and meal periods, the recognition that “millennials” generally make crappy employees,3 and a boss who called a disabled employee “Rain Man.”4 Articles on these topics don’t exactly write themselves, but the subject matters are pretty easy to have fun with, while being informative and analytical at the same time.
But the run of subject matter that’s been my creative good fortune seems to be suffering a drought as far as humor is concerned. Turns out the developments of late—that are actually relevant to business owners—aren’t particularly funny. Even worse, they provide answers (at least temporarily) to oft-asked questions by employers—answers that aren’t what most employers were hoping to hear. So, if you don’t like bad news, I suggest skipping the balance of this column and jumping to the restaurant reviews. Otherwise, pour yourself that martini, sit down and breathe in deep (it’s not that bad, actually—the martini alone should suffice).
Expense reimbursement obligations
Most employers know they have a legal obligation to reimburse employees for expenses. That obligation stems from Labor Code section 2802, which requires employers to indemnify employees for all “necessary expenditures” engaged in “direct consequence” of their employment. Such expenditures typically involve things like mileage reimbursement, employee advances of costs to buy something the employer needs (like office supplies), hotel costs for required travel—you get the point. Unfortunately, section 2802 leaves a lot unanswered. One of the more routine questions asked by employers generally goes something like this: “Hey, Mr. Smarty Pants Lawyer: How long do we have to give an employee to submit an expense report before we can deny the expense?” Up until late last year, no case had ever answered that question. I’ve seen attorneys answer it in a number of ways, from, “It’s unclear,” to, “A reasonable time,” to, “I have no idea.”
Well, a federal district court recently answered that question. In a case involving a class action lawsuit against RadioShack, the court determined an employer’s policy putting a time limit on, or requiring an employee to follow a process before, providing reimbursement cannot be legal prerequisite to reimbursement. Then, in a subsequent opinion, the same court indicated an employee may not waive the right to reimbursement by failing to request it within the time allowed by law (which appears to be three years from incurring the expense).
What this means for employers is that, while you can have policies intended to motivate employees to be timely when turning in expense reports, the recourse you have is not to deny reimbursement. But that doesn’t mean you’re without recourse—you (almost) always have the right to impose discipline (including termination of employment) for employees who violate your policies—just make sure you reimburse them for the expenses.5
New twist on meal and rest period penalties
Another federal court recently weighed in on meal and rest period penalty “wages.” This time it wasn’t to address whether the amount required as the premium constituted a “wage” or a “penalty.” Instead, this decision addressed the issue of whether the statute that creates the “penalty wage” was: limited to one-hour of pay for any day in which a rest or meal period was missed; one-hour for each violation, even if multiple violations in a day (such as three hours if an employee missed one meal period and two rest periods); or an hour of pay for a day in which any meal period was missed, and another hour for any day in which any rest period was missed (with a max of two per day). While employers were hoping for the first option, the court opted for the third. Unfortunately, this is (frankly) the most sensible reading of the statute and those employers who were counting on the one-per-day limit need to renew their vigilance in ensuring employees are informed of their rights to take rest and meal periods, and do nothing to interfere with the exercise of those rights.
Feel free to have that second martini now, and reread. At some point, this stuff might start to seem funny.
1 Which you missed if you didn’t painstakingly read the footnotes. So, go back and read them all again. Really—it’s worth it. They’re funnier the second time. You can even order back issues online if you don’t like scrolling down the screen to read.
2 I’ve tried to avoid lazy one-line insults in these columns; I like to save those for my personal relationships (and for my editor). They go over so much better in person, especially in the heat of an argument. If you don’t believe me, try it at home. (Hope you have a comfortable couch.)
3 And remember, since they’re well under 40, you can lawfully discriminate against them on the basis of their age.
4 And, who can forget that ever-important topic about the worker’s comp implications of dying in bed with a hooker while on a business trip? (See “What Happens in Vegas,” Dec. 2009.) You simply can’t make this stuff up.
5 Your right to discipline may not be absolute, as you may have other policies that govern discipline (such as progressive discipline), have a collective bargaining agreement that limits your right in this circumstance, or otherwise have a past practice of not disciplining for this particular offense that may create other legal liabilities for you (like discrimination). In other words, check with your lawyer first.
