Meal Periods and Breaks vs. MOU

Cotterwood

This is crazy. Last week one of our supervisors came into my office and announced that the GM pronounced that 'starting X/X/XX' all classified employees HAD to take their breaks in the middle of each work period - instead of tagging them on the lunch period - per past practice (per the current MOU).
And HAD to take their lunch period in the middle of the day.
Needless to say, this has caused a firestorm. The MOU states 'per past practice' and yet the GM wants something different.

Now I KNOW we are bound to the MOU until negotiated again, but I haven't the foggest idea what came over our fearless leader. Yes, I know what the CA DOL states - I've already given a copy with a memo to this person. The CA law states the er is to authorize and permit at least 10 minute breaks in the middle of each work period ----insofar as practicable. Which means there is flexibility between the er and ee.

This is the second time he has jumped at something before checking. The first thing I'm afraid is going to cost us. Anybody else have this problem? How did you get your 'leader' to check in with you from time to time on things?

System

Is there anyone who hasn't had this problem?
Usually after a few "firestorms" (read total disruption of the workforce) the savy manager will realize there's a better way to inspire productivity and team work. In the meantime you can meet with the manager and coach him/her in a laid back fashion about how you are there for him/her and can make his/her life a lot easier if you're kept in the loop before sweeping changes to past practice are made. But don't be surprised if even the best fall back on their "I'm the boss" attitudes every now and then. It's HR--like the man said---"it's like Chinatown".

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 04-07-03 AT 08:14PM (CST)[/font][p]Cotterwood, I see you use terms like "classified" and MOU -- you wouldn't be in the public sector by any chance -- in California -- would you? If so, let me know. I'm in California public sector HR.

You mention "past practice". It sounds as if the MOU doesn't specifically address when the break should be taken.

If that is the case, an employer can change "past practie" by announcing its intent to change past pracitce to the union and then meet to resolve any issues. "If there is a "management's rights" article in your MOU that may provide some cover for the GM.

I assume the past practice isn't so much of a definitive practice but more of a lack of enforcement of the state legal requirements on breaks. Thus it MAY be a situation if the employer implements the change over union objections and then the union files a ULP, that an arbitrator could support management in changing the practice of when employees take breaks without renegotiating the contract on that issue.

It isn't clear at all that what the employer was not controlling amounts to negotiable past practice. Remember, the employer is trying to bring itself into compliance with state law and there is nothing in the California IWC Wage Order on breaks that creates a "mutally agreeable" alternative to the requirement of when the break is to be taken. But all that is what makes aribtrations interesting. And I could be misunderstanding what constitutes grounds for having to negotiate a change in "past practice."

While there may be some flexibility as to when the break can be taken, the employer is only obligated to allow the employee to take the break within the time frame set by the Industrial Welfare Commission. The employer certainly doesn't have to permit a "tacking on" of the rest period to the meal period. the employer is only on the hook for not allowing the employee to take the break at the appropriate time. Whether the employee actually takes a break reasonably within that time frame, when that opportunity is provided, is another matter for which the employer is not held responsible.

Here it sounds as if the employees are making their own decisions not to take the break in the middle of the 4 hours but instead tack it on to the meal period. It seems to me, as I said before, that doesn't constitute the "past practice" envisioned by traditonal labor relations. "Insofar as practicable" doesn't give an employee a "right" to not take the break at the appropriate time if it is available but instead to tack it on to the meal period. "Insofar as practicable" it seems to me to mean the rare occasion when work or other understandable circumstances do prevent the employee from taking the break even though the employer may allow it at the appropriate time, that other arrangements could be done. But that wouldn't be on a regular or continuing basis as what appears to be happening in your situation.