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Worker Wants to Give Up Rest Breaks for Longer Lunch

Question: I am a non-exempt employee who gets two 15-minute breaks and a half hour for lunch. Can I combine my breaks and lunch time to take a one-hour lunch?

--A.B., Westminster

Answer: The California wage orders require rest periods for non-exempt employees whose total daily work time is at least 3 1/2 hours. The orders mandate the rest periods, “insofar as it is practicable,” be in the middle of each work period. The rest period must also be at the minimum rate of 10 consecutive minutes for each four hours or major fraction thereof. Remember, the employee’s rest period is indeed paid by the employer, while the lunch period is generally not paid.

The wage orders also generally prohibit employers from employing a non-exempt employee for a work-period in excess of five hours without a meal period of at least 30 minutes. There are several exceptions, however. One exception provides that an employee may voluntarily agree (preferably in writing) with the employer to waive the right to a meal period provided the employee does not work more than six hours in a workday.

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There are a few occasions when an employer may obtain an exemption from the division of labor standards enforcement, but generally the employer must comply with the rest and meal period requirements. To answer your question, it is not permissible to “tack on” the rest periods to the unpaid meal periods to create a 60-minute meal period without pay in an effort to circumvent the rest period requirements.

--Elizabeth Winfree-Lydon, senior staff consultant The Employers Group

Question: My daughter had worked four years for an architectural firm and was recently laid off. She was given two weeks’ pay, which seems rather meager. Is there anything in the law that defines what severance should be?

--H.S., Newport Beach

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Answer: There is no law governing or even requiring an employer to provide severance pay. However, if an employer has a policy--either in practice or explicitly in an employee handbook--that provides for severance pay, it must be applied equally to all employees.

The severance package offered by the employer may be increased by an employee asserting other claims, such as discrimination, retaliation for whistle-blowing or defamation.

If an employer requires an employee to sign a general release as a condition to receiving severance pay, a full evaluation of all possible rights should be obtained through an attorney. If an employer does not require a general release, an employee can informally try to increase the severance amount and then pursue the employer for more, if justified.

--Don D. Sessions, employee rights attorney Mission Viejo

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Question: How do you handle the sticky issue of securing job references from your current employer? Most prospective employers want to speak to your immediate supervisor, but I don’t want my current bosses to know I’m looking for a job. Any suggestions?

--R.P. Anaheim

Answer: Communicate the situation to the prospective employer. Perhaps other references, from earlier employers, colleagues and personal sources will suffice. Often, a prospective employer will put off contacting your current employer until after it is fairly certain that you will be coming on board--using your current employers reference as only a “final check.”

If the prospective employer insists on a reference from your current supervisor, you might want to inform your supervisor beforehand that you are exploring other job possibilities and that he or she will be contacted. It can be a sticky situation, but in today’s work world, most employers recognize that many employees are exploring other career possibilities. If you are valuable to your current employer, that employer could make an offer to try to retain you. The situation could work out to your advantage either way.

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--Ron Riggio, professor of psychology Cal State Fullerton

Question: I work for a company that schedules overtime on the weekend. For a long period of time, we would normally work from 8 a.m. to noon on Saturday. All of a sudden, it changed from 8 to 11 a.m. Is there a mandatory minimum amount of time an employer has to have you come in for?

Answer: The wage orders of the California Industrial Welfare Commission, which covers most (but not all) California employers, require that if you are scheduled to work and show up for work but your employer does not have enough work to employ you for your full scheduled shift, you are entitled to be paid for half your scheduled shift or two hours, whichever is greater.

There is no requirement that employees be scheduled for more than two hours, however, and nothing legally prohibits your employer from cutting your Saturday schedule from four hours to three.

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--James J. McDonald Jr., attorney, Fisher & Phillips labor and employment law instructor, UC Irvine

Question: Is there any law that gives a working mother the right to bring her newborn to her job during regular working hours?

--F.P., Lake Forest

Answer: There is no such law. While employers must give working mothers up to 12 weeks of unpaid leave in connection with the birth of a child, there is no legal requirement that they provide child care. For help in finding a child care provider, try the Orange County Child-Care Assn. at (714) 960-7370 or the Kid Care Hot Line of the Children’s Home Society at (714) 543-2273.

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--Calvin House, attorney Fulbright & Jaworski L.L.P. adjunct professor, Western State University College of Law

Question: I have been working for my employer for close to a year. When I was hired, I was to receive a 25-cent raise after 90 days of employment. My manager told me she was too busy to give me my review at that time and that I would be given full retroactive pay from the date it was due.

When I was given my review, more than six months after it was due, my manager said that my raise was denied. I have the paper they gave me about their policy on raises and I asked my manager about this. She lied to me and made up something about it pertaining to something else. I am mad. I want my money. Twenty-five cents is not a lot, but it adds up. From Oct. 26, 1993 (which is when I should have been given my raise), until May, 1994, they owe me about $200. What can I do?

--H.L., Garden Grove

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Answer: The answer depends upon what you were told when you were hired. If the company’s policy conditions the increase on the employer’s evaluation of your performance and the employer maintains that there were problems with your performance, then you probably have no recourse. If the policy provides for automatic increases, or you were told that you would automatically receive an increase without regard to your performance, then you probably would have a claim, which you could pursue with the state labor commissioner’s office in Santa Ana.

--Michael A. Hood, employment law attorney Paul, Hastings, Janofsky & Walker


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