Meal and Rest Break Penalties; Form I-9 Policy; LA County Mask Order

Recent changes to the law regarding penalties for meal and rest break violations, as well as the federal government’s policies on Form I-9 verification, will have important consequences for California employers.

Los Angeles County also has a new public health order going into effect over the weekend.

Each topic is addressed in turn below.

Rate of Pay for Meal and Rest Break Penalties

Yesterday, the California Supreme Court issued its decision in Ferra v. Loews Hollywood Hotel, and their decision yet again makes life more difficult for California employers.

At issue in the case was how “one hour of premium pay” should be calculated with respect to penalties for meal and rest period violations.

The Court held that meal and rest period penalties must be paid according to the employee’s “regular rate of pay.”  Even more troubling for employers, the Court further held that this decision will apply retroactively.

As a reminder, an employee’s regular rate of pay is different—and generally higher—than their base hourly rate.  Regular rate of pay is essentially an employee’s total compensation for a week (including, for example, overtime pay), divided by the total number of hours worked that week.

However, in reality the calculation is often more complex.  We are happy to assist our clients with these calculations based on circumstances specific to a particular employee or employees.

Employers who have had been penalized for a meal or rest period violation in the past four years must go back and review their files to determine: (1) what the regular rate of pay was at the time for the employee(s) in question; and (2) whether the amount paid to the employee as penalty was enough.

If the amount paid to the employee was insufficient, we recommend that the employer proactively pay the employee the balance, in order to avoid a potential lawsuit down the road.

Form I-9 Employment Eligibility Verification – New Policy for Lost or Damaged Documents

Employees with lost or damaged identifying documents have new options for providing alternative documents, due to a new policy adopted by U.S. Citizenship and Immigration Services (USCIS) concerning Form I-9.

Form I-9 is used by employers to verify a worker’s eligibility to work in the United States.  It requires the employee to provide identifying documents such as a passport, driver’s license, permanent resident card, etc., or a combination thereof.

In the past, when a document needed by a worker was expired, lost, damaged, etc., the worker could apply to the relevant agency (for example, the DMV for an expired driver’s license) and provide the employer with a receipt, showing that the worker was in the process of obtaining a new document.  This would satisfy the eligibility verification requirement for a period of 90 days, or until the worker was able to obtain a new document.

During the COVID-19 pandemic, with many governmental agencies closing their physical offices, this process became more difficult and in some cases impossible.

In response, USCIS has instituted a new policy providing workers with more flexibility.

Previously, in the scenario described above, the worker would need to eventually obtain the document for which the worker had the receipt, within the 90-day period, in order to verify their employment eligibility.

Now, the worker can provide any qualifying document or combination of documents—meaning it does not have to be the very same document for which they have the receipt—as long as they do so within the 90-day period.

Human Resources professionals and departments should be aware of this new policy in the event that a new hire needs to replace or obtain an identifying document.

Los Angeles County to Reinstate Mask Order

Due to rising numbers of COVID-19 cases, Los Angeles County will reinstate its face-covering mandate.

Beginning Saturday, July 17, at 11:59pm, individuals in Los Angeles County will once again be required to wear masks when indoors, regardless of vaccination status.