Wednesday, September 05, 2012

Great Moments in Government Regulation

Business owner and blogger Warren Meyer explains at his Coyote Blog how the California Department of Labor forces employers to force employees to take an unpaid 30-minute lunch,  even when employees want to work through lunch and get paid and employers agree.  Here's part of Warren's post:
Theoretically, under California law, employees have a choice - work through lunch and get paid while eating at the job post, or employees can 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 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.

So, we find ourselves at the bizarre crossroads of making working through lunch a fireable 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.
HT: Morgan Frank

51 Comments:

At 9/05/2012 10:24 AM, Blogger VangelV said...

I guess this explains your optimism about the recovery in the US economy.

 
At 9/05/2012 10:32 AM, Blogger Buddy R Pacifico said...

Under the Federal Fair Labor Standards Act (FLSA), for wage and hourly employees:

"The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating."

Most companies with a competent HR will strictly enforce clocking out for meals, or else a big federal headache will will ensue.

 
At 9/05/2012 10:37 AM, Blogger Methinks said...

This comment has been removed by the author.

 
At 9/05/2012 10:39 AM, Blogger Methinks said...

Vangel,I think you are confusing Pollyannishness with general optimism.

If I take all of Mark Perry's posts together, I don't see a Pollyannish attitude. I see acknowledgement that while there is a lot of government drag and other obstacles, dystopia is unlikely to be our future.

Why must everything be all good and or all bad?

 
At 9/05/2012 10:58 AM, Blogger Krishnan said...

"Well, the employees have NO idea what is good for them, so, WE, the GOVERNMENT MUST COME IN and help them help themselves. Just remember that without GOVERNMENT, people will fall sick, they will infect others and die. We are doing good by forcing them to do good to themselves"

I understand that the GOVERNMENT in California will have legislation passed that will enable law enforcement to visit every home and check that every resident is eating at the right time and the right foods - this will be matched by rigorous inspection of all grocery stores - and items that are not healthy will be confiscated and the grocery stores will be fined.

How dare do employees think for themselves ... and it is about time for GOVERNMENT to step in and fix all of societal problems - because those that work for GOVERNMENT are benevolent dictators who know what is good for others.

 
At 9/05/2012 11:31 AM, Blogger morganovich said...

buddy-

i worked at several companies in SF. we all ate at our desks. in many cases, the employer provided lunch at your desk. we all viewed it as a perk. (i do not think this law applies to salaried employees. if it does, then there is a helluva class action brewing in the SF finance community)

i get your point about "competent HR" but i think the real question is "competent in the face of what?" what is the purpose of this law? mandating you take unpaid lunch when you would rather have a paid one seems like the opposite of protecting a worker. it takes away their choices.

 
At 9/05/2012 11:45 AM, Blogger Methinks said...

Sadly, Morganovich, the law does not actually mandate an unpaid lunch break. So, nobody can point at politicians for writing such nonsense. The mandated unpaid lunch break is an unintended consequence, according to Coyote.

We too have always provided all employees with lunch, snacks and beverages because there's no such thing as leaving the desk during market hours unless it's a full on emergency.

 
At 9/05/2012 11:54 AM, Blogger Buddy R Pacifico said...

morgan,

I don't disagree with you and do not defend the fed law.

Here are the basic meals/ovetime exemptions to the FSLA.

btw, I believe that hedge fund managers may be able to collect overtime for lost mealtimes -- if paired with net quarterly transaction losses. :>)



 
At 9/05/2012 12:19 PM, Blogger Methinks said...

Nobody is going to devote the time to parsing those exemptions, Buddy. They are far too vague, leaving far too much room for employers to unwittingly hang themselves and imagine the effect on moral if some employees must leave while others don't have to.

 
At 9/05/2012 12:34 PM, Blogger morganovich said...

buddy-

when you own your own business, notions of "overtime" are pretty much non existent.

who would i bill, myself?

as methinks said, it's finance. you eat at your desk. i cannot even really wrap my brain around calling it "overtime. i think of it as "work".

 
At 9/05/2012 12:48 PM, Blogger Buddy R Pacifico said...

Looks like you won't be overtime eligible for missing meals if...

you are a "Learned Professional"

and make at least $455 a week,

so...

go ahead and work through lunchtime today if you want.

Here are the Exemptions for Professional Employees under the FSLA.

 
At 9/05/2012 1:05 PM, Blogger Methinks said...

Buddy, you're doing a great job illustrating the problem with these laws: they disadvantage the hourly wage earners in non-professional positions for whom that half hour of work makes a much bigger difference. It is the relatively poor with the least number of options whom government robs further with its godforsaken "protection.
Toujours la meme chose.

 
At 9/05/2012 1:49 PM, Blogger morganovich said...

"learned professional"

that may be the nicest thing anyone has ever called me.

sniff.

thanks buddy.

 
At 9/05/2012 1:52 PM, Blogger Buddy R Pacifico said...

"Buddy, you're doing a great job illustrating the problem with these laws: they disadvantage the hourly wage earners in non-professional positions.

Toujours la meme chose."


Oui, c'est vrai.



 
At 9/05/2012 2:01 PM, Blogger Buddy R Pacifico said...

""learned professional"

that may be the nicest thing anyone has ever called me.

sniff.

thanks buddy."


I'd comment but the lunch horn just went off...

 
At 9/05/2012 2:08 PM, Blogger Methinks said...

LOL!

 
At 9/05/2012 3:08 PM, Blogger Paul said...

How many employees would claim they worked through lunch and stick it to the taxpayers were it not for this rule? Close to all of them, I imagine.

 
At 9/05/2012 3:28 PM, Blogger VangelV said...

Why must everything be all good and or all bad?

Principles are good or bad. A complex system that has rejected good principles will eventually be doomed to failure. In the case of the US the problem is a Federal Reserve system that acts as an enabler to expanding government that is paid for by debt and inflation. That is ALL bad.

 
At 9/05/2012 3:29 PM, Blogger VangelV said...

I understand that the GOVERNMENT in California will have legislation passed that will enable law enforcement to visit every home and check that every resident is eating at the right time and the right foods - this will be matched by rigorous inspection of all grocery stores - and items that are not healthy will be confiscated and the grocery stores will be fined.

California is an extreme case but all state governments and the federal government suffer from the same disease.

 
At 9/05/2012 4:08 PM, Blogger Ron H. said...

"btw, I believe that hedge fund managers may be able to collect overtime for lost mealtimes -- if paired with net quarterly transaction losses. :>)"

There you go, morganovich, stick it to the man!! :)

 
At 9/05/2012 4:29 PM, Blogger PeakTrader said...

So, without the 30 minute lunch law, an employer can force an employee to work through lunch?

 
At 9/05/2012 4:50 PM, Blogger hancke said...

Think CA will catch on as to why businesses are leaving their fine state? If your customer base in not local, why would you bother with this nonsense?

http://www.nctimes.com/article_be130984-2fe2-52f1-b49e-3cc2e28fbe70.html

 
At 9/05/2012 4:54 PM, Blogger Ron H. said...

"Toujours la meme chose."

Oui, c'est vrai.
"

Get a room, you two. :)

Actually it's possible that I too can speak French, but I don't know because I've never tried.

 
At 9/05/2012 4:58 PM, Blogger Ron H. said...

"So, without the 30 minute lunch law, an employer can force an employee to work through lunch?"

Do you mean legally or practically?

 
At 9/05/2012 4:59 PM, Blogger Ron H. said...

"Think CA will catch on as to why businesses are leaving their fine state?"

No. Why should they start now?

 
At 9/05/2012 5:04 PM, Blogger PeakTrader said...

Ron says: "Do you mean legally or practically?"

I mean exploitively. Some people on this blog seem willing to be exploited.

 
At 9/05/2012 5:17 PM, Blogger PeakTrader said...

Some people seem so eager to give away their low labor standards, and perhaps even their human rights.

If they want to be free, they should try skydiving without a parachute.

 
At 9/05/2012 5:38 PM, Blogger PeakTrader said...

Labor standards aren't driving jobs away from California.

It's excessive regulations, taxes, fees, fines, fares, tolls, etc..

 
At 9/05/2012 6:07 PM, Blogger Methinks said...

Give it a go, Ron! You can't mangle the language more than i!

 
At 9/05/2012 6:11 PM, Blogger Methinks said...

Peak,

How does a law that effectively compels employees to take an unpaid break help them? How does it RAISE their labour standard? How does taking away an option from them increase their human rights?

 
At 9/05/2012 6:25 PM, Blogger juandos said...

BS Alert!

"Labor standards aren't driving jobs away from California"...

Ahhhh peak so disappointing old son...

Labor Standards are a tax!

Labor Standards cost money, the question is just how much are the costs impacting the bottom line...

 
At 9/05/2012 10:33 PM, Blogger Ron H. said...

Peak:

"Labor standards aren't driving jobs away from California.

It's excessive regulations, taxes, fees, fines, fares, tolls, etc..
"

If you read the post at Coyote Blog you would understand the problem isn't the standard, but that California courts have repeatedly found for employees who claimed they had been forced to work through their lunch breaks, even though they had chosen to do so. Therefore, no sensible employer would allow a worker to work through their break for extra pay, even if both benefit.

Warren Meyer's example is an employee who sit in a gatehouse at the entrance of a campground. He must take a 30 min break and leave the post during his shift to ensure against the above mentioned problem.

Exploitation isn't a problem here Peak.

 
At 9/05/2012 10:39 PM, Blogger Ron H. said...

"Give it a go, Ron! You can't mangle the language more than i!"

Okay, what have I got to lose? here goes:

"Laissez le bon temps rouler!"

Oh wow. I did it!

 
At 9/05/2012 11:42 PM, Blogger Methinks said...

Oh la la! That was Cajun, Ron H.!

Well...if you ever go to Louisiana, it'll come in handy. Que la fête commence!

Mr. Methinks and I used to speak French and we're trying to resurrect it. I don't know why. We speak to the French in grating French. They speak to us in English. Hoping to return us to English. So they can escape the sheer hell of hearing our French. Alas, we're determined.

 
At 9/06/2012 1:52 AM, Blogger Ron H. said...

"Well...if you ever go to Louisiana, it'll come in handy."

Ya, it's good for making new friends. Whenever I say it, people smile and nod in agreement and order another drink. :)

"Que la fête commence!"

Oui oui!

"Partie rock est à la Chambre ce soir. "

Luckily you can't hear me trying to pronounce that.

"Mr. Methinks and I used to speak French and we're trying to resurrect it. I don't know why. We speak to the French in grating French. They speak to us in English. Hoping to return us to English. So they can escape the sheer hell of hearing our French. Alas, we're determined."

LOL

What could be better than annoying the French in their own language, eh?

 
At 9/06/2012 2:26 AM, Blogger PeakTrader said...

Some people don't seem to understand there's an imbalance of power between an employer and employee.

A 30 minute lunch doesn't seem excessive.

 
At 9/06/2012 2:41 AM, Blogger Methinks said...

Of course, you don't know true hell until you've heard me helping Edith Piaf sing "No, Je ne regrette pay rien."

No! rien de Rien! Je ne regrette pas rien!!

In part it's because I am blessed with thee melodious voice of an alley cat suffering from severe food poisoning and in part because all those R's pronounced at the back of my throat kind of sound like I'm coughing up a hairball. However, I attack the song with such shocking passion that people usually either frantically search for something more shocking to distract me with outside (Oh, look! An Osprey carrying a fish landed on your dock right next to your flock of plastic pink flamingos! What interesting landscaping you have here in the sunshine state. I didn't realize grass came in magenta! And with sparkles. How festive!) or just politely allow their ears to bleed.

 
At 9/06/2012 2:42 AM, Blogger Ron H. said...

"Some people don't seem to understand there's an imbalance of power between an employer and employee."

And some people don't seem to understand the topic of this post.

 
At 9/06/2012 2:50 AM, Blogger Methinks said...

That same person doesn't realize that employment is at will and that employers are forced to bid for labour in the labour market while labour has the right to switch jobs any time. seems balanced enough to me.

Nowhere is there more imbalance of power than between the state and the employees it effectively robs of yet one more option to improve their lot in life.

 
At 9/06/2012 11:49 AM, Blogger sethstorm said...

Nothing prevents the employer from bumping the clock-out time 30 minutes later for the full 8 hours. If the employer wants to pull a fast one, well, odds are that they're Southern.


That same person doesn't realize that employment is at will and that employers are forced to bid for labour in the labour market while labour has the right to switch jobs any time. seems balanced enough to me.

However, you fail to realize the switching costs, and the impact an employer can have w/r/t downward pressure on conditions/wages.


This can be seen by the pressure to use indirect labor, since making it Someone Else's Problem only moves the negatives. The employer can use the provider of indirect labor to remove people in ways not normally provided by law, or to get around paying benefits normally due to the person. In addition, it removes security and trust as the employer knows not the people doing the work, but only the performed work. The best remedy for such is to put indirect labor on par with labor unions in terms of RTW restrictions - as it promotes freedom.

 
At 9/06/2012 11:56 AM, Blogger Methinks said...

I'm sorry, Seth, I can't devote the time to deciphering your latest totalitarian state solutions as I'm listening in on the skype call currently in progress between the programmer we hired in India and the partner here in charge of algorithmic trading. Of course, algos have significantly reduced our head count.

 
At 9/06/2012 12:22 PM, Blogger Ron H. said...

"No! rien de Rien! Je ne regrette pas rien!!"

LOL

Still waiting for that book: I'm telling you, it would be an instant best seller. :)

 
At 9/06/2012 12:37 PM, Blogger Ron H. said...

"That same person doesn't realize that employment is at will and that employers are forced to bid for labour in the labour market while labour has the right to switch jobs any time. seems balanced enough to me."

Yes, and on another thread someone is certain that Obamacare will allow workers even more mobility than they have now.

What's not clear is how frequently changing jobs will allow a worker to improve their skills and thus enhance their value to employers and earn higher wages.

 
At 9/06/2012 12:50 PM, Blogger Ron H. said...

"However, you fail to realize the switching costs, and the impact an employer can have w/r/t downward pressure on conditions/wages."

Yes. If a low skilled worker changes jobs frequently it may be hard for them to improve their skills so as to be worth a higher wage.

Employers frequently hire a worker at a low wage and then increase it as they recognize the employee's increasing value. I don't believe there are many who start workers at a high wage then decrease it as they realize the worker's value is less than they assumed.

Therefore, moving around a lot may keep your pay low.

 
At 9/06/2012 12:54 PM, Blogger Methinks said...

Well, Ron, that person is probably right.

I mean, now people are often hesitant to leave their jobs because generous insurance plans offered by their employers allow them access to medical care competing employers' medical plans don't provide. Under Obamacare, all employers will collect a health care tax which offers only the need to travel to Mexico to obtain medical care in exchange for even more money. Thus, I have to agree that Obamacare will likely increase labour's mobility quite markedly.

 
At 9/06/2012 1:01 PM, Blogger Methinks said...

Therefore, moving around a lot may keep your pay low.

Actually, I think the opposite is true. One of the reasons women make less money is that they don't put their labour up for bid as frequently as men and suffer wage compression.

Employers will increase pay only enough to keep you where you are. A competitor must bid higher to lure you away. Let the auction begin. There is a balance, but regularly at least putting your labour up for bid is the better way to maximize compensation.

 
At 9/07/2012 1:03 AM, Blogger Ron H. said...

"Thus, I have to agree that Obamacare will likely increase labour's mobility quite markedly."

Yes. Mexican vacations are very exciting these days.

 
At 9/07/2012 1:06 AM, Blogger Ron H. said...

"Actually, I think the opposite is true. One of the reasons women make less money is that they don't put their labour up for bid as frequently as men and suffer wage compression."

And of course they go into labor more frequently than men also.

 
At 9/07/2012 8:40 AM, Blogger Methinks said...

And it's drugs that kill?

sigh.

 
At 9/07/2012 8:03 PM, Blogger Hydra said...

Every one has BEGGED FOR the extra 30 minutes of pay.

Gee, is the pay that good?

 
At 9/08/2012 12:33 AM, Blogger Ron H. said...

"Every one has BEGGED FOR the extra 30 minutes of pay.

Gee, is the pay that good?
"

The difference is between sitting in the gatehouse eating your sack lunch and getting paid for 30 min. vs sitting outside the gate house eating your sack lunch and not getting paid for 30 min. Which would you prefer?

 

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