While school may be out, work is still on. During the summer months, employees may call out sick less often (no school germs!), but some will make requests for schedule changes and flexibility due to childcare obligations and vacations. Some employers may offer “Summer Fridays,” where hours are reduced on Fridays during the summer months.
 

Below are some tips and reminders to stay compliant this summer.

1. Non-exempt employees should not work “off the clock.” It may be tempting for employees to work off the clock by either working through their meal and rest breaks or outside of clocking in/out in order to finish up tasks before they head out on vacation, but doing so should be against an employer’s policy and is definitely against the law. Remember also that asking an employee to work while on vacation makes it compensable time (even if it is just a quick email, text, or call).

2. Non-exempt employees should not apply their rest breaks or meal breaks to cover arriving at work late and leaving early or to lengthen a meal break. Federal law does not require employers to provide meal or rest breaks. State laws, however, may require meal periods, rest breaks, or both, and in those states, it is important to honor those breaks as the applicable law requires.

In California, for example, employees who work more than five hours in a workday are entitled to an unpaid meal break of at least 30 minutes, to be taken by the end of the fifth hour of work. This first meal period may be waived by mutual consent if the employee’s workday is no more than six hours. California employees who work for more than 10 hours are entitled to a second unpaid meal break of at least 30 minutes. The second meal period can be waived by mutual agreement if the employee’s total hours worked are not more than 12 hours and the first meal period was not waived. When employees work shortened summer hours, they may be more likely to qualify for meal break waivers; employers should be sure to obtain written waivers for those employees if such a waiver is allowed.

Also, California employers must provide paid rest breaks at a daily rate of a net 10 minutes for every four hours or a major fraction thereof (meaning more than two hours). Therefore, California employees are entitled to rest periods as follows: 10 minutes for shifts of 3.5 to six hours (no rest period is required for employees working less than 3.5 hours in a day), 20 minutes for shifts of more than 6 to 10 hours, and 30 minutes for shifts of more than 10 to 14 hours. California law prohibits combining rest breaks and meal breaks.

In New York, non-factory employees who work a shift of more than six hours that extends over the noonday meal period (between 11 a.m. and 2 p.m.) must be allowed at least 30 minutes off during that period. New York non-factory employees who work a shift of more than six hours that starts between 1 p.m. and 6 a.m. must be allowed a meal break of at least 45 minutes midway between the beginning and the end of the shift. While New York does not have specified rest break requirements, the New York Department of Labor has stated that if rest breaks are provided to or taken by employees, they must be counted as working time.

In both states, it is important not to combine any off-duty breaks and to provide those breaks within the windows prescribed by law.

3. Employers should avoid having employees use their personal property (including phones, laptops and internet) for work purposes unless the employer is providing a reimbursement that is a reasonable percentage of the expense. In some states, like California, failing to reimburse employees for the use of their personal property for work purposes is an express violation of law.

4. Be sure you know where your employees are working. In addition to potential tax consequences, employees are subject to the employment laws of the location (city, county, state, and country) where they are working. So, if employers allow employees who do not usually work remotely to do so this summer, or allow remote employees to work from a different location (e.g., a vacation home), employers may face potential liability if they do not comply with the applicable employment laws. This may include, but certainly is not limited to, a different applicable minimum wage or salary threshold for exempt status, paid sick leave accrual requirements, and workers’ compensation insurance coverage.

5. Employers should (and in some cases, must) provide reasonable advance notice if they will require employees to use accrued vacation at a specific time. In California, if an employer is going to force an employee to use their accrued vacation time, reasonable advance notice is usually 90 days.

6. It is usually not advisable to advance unearned paid vacation time or unearned wages. If an employee quits or is terminated, in some states (like California), employers cannot unilaterally deduct advanced wages from the employee’s final paycheck because this would constitute an illegal withholding of wages.

7. While employers can have a policy requiring prior approval for the use of vacation time, employees are often entitled to legally protected time off for certain reasons for which they may not need to seek prior approval. Those reasons depend on the laws of the employees’ locations, but often relate to health (e.g., Family and Medical Leave Act/California Family Rights Act (FMLA/CFRA) or paid sick leave) or military or civil service (e.g., volunteer firefighters, jury duty). As a result, employers should avoid taking adverse action against employees who are taking legally protected time off. In fact, California implemented a new law, effective January 1, 2024, that creates a rebuttable presumption of retaliation if an employee experiences an adverse employment action within 90 days of engaging in certain protected activity, including exercising employee rights afforded under the state labor code, whistleblower activity, and concerns related to California’s Equal Pay Act.

In sum, employers should remain consistent in following all applicable employment laws for the locations where their employees work. After all, doing so protects both the employees and the employer!

Authors’ Bios

	Kelly M. Raney is a Partner at Greenberg Glusker Fields Claman & Machtinger LLP.
	Paulina Chau is an Attorney at Greenberg Glusker Fields Claman & Machtinger LLP.

Error: No such template "/CustomCode/topleader/category"!