Frustrated waitress trying to hit colleague with a cucumber
California continues to lead the nation in protecting workers, including those in the restaurant industry.
Here are five new changes in the Golden State effective this year that will impact the restaurant workplace.
California requires that hourly employees get a 30-minute unpaid meal break after no more than 5 hours of work, and a second 30-minute unpaid meal break working more than 10 hours in a day.
On February 25, 2021, the California Supreme Court issued its opinion in Donohue v. AMN Services, LLC, holding that employers cannot round meal break clock in/outs in time records (meaning that breaks cannot be cut short, even for a minute). The Donohue opinion also made clear that employee time records showing a late, short, interrupted, and/or missed meal break amounts to a rebuttable presumption of a violation at the summary judgment stage. In non-legal terms, this means that restaurants will have to prove compliance if their records hint otherwise.
Impact On Restaurant Workers: The requirement about time records may be especially problematic for restaurants where tipped employees often want to skip breaks to keep getting tips.
California Labor Code § 6409.6(f) says that “an employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.” This means that employers cannot fire or punish an employee for disclosure of any of these COVID-19-related reasons — i.e., positive test, quarantine, or isolate.
Impact On Restaurant Workers: Remote workplaces face COVID-19 exposure far less frequently than restaurants fighting to remain open.
California Government Code § 12945.2(b)(3) says that California employers with 5 or more employees are covered by the state-equivalent of the federal medical leave law, known as the California Family Rights Act. (This threshold used to be 50 employees.)
Impact On Restaurant Workers: Even small restaurants that employ a few workers must grant a request by one of them (who has at least 1,250 hours of service with the employer during the previous 12-month period) to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee, or to care for themselves, a child, a parent, or a spouse.
California Government Code § 12960(a) sets the statute of limitations on discrimination, harassment and retaliation claims at 3 years (it used to be 1 year).
Impact On Restaurant Workers: Restaurants already face one of the highest rates of harassment claims of any industry, and this new law effectively triples the time period in which a worker may file a claim.
California Government Code § 12964.5 makes it illegal for a company to require an employee to waive anti-harassment and anti-discrimination claims in exchange for a payment or remaining employed.
California Civil Code § 1001 makes it is illegal for a company to require an employee to sign a non-disparagement agreement or other document that seeks to deny the employee the right to disclose information about harassment the workplace (even as part of a settlement of a claim).
Impact On Restaurant Workers: Restaurant employees who suffer workplace harassment now have greater rights against a company who is trying to keep it under wraps. No longer can companies seek push waiver and confidentiality agreements on lower-level employees while ignoring a hostile workplace.
I’m an employment lawyer at Colby Law Firm who represents California employees in workplace disputes.