Oftentimes when people hear the words “restraining order,” they immediately think about a situation involving domestic violence. In reality, restraining orders are a tool that can be, and should be, used by individuals as well as businesses. California’s Code of Civil Procedure section 527.8 addresses this exact issue.
“(a) Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an order after hearing on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.” (Code of Civil Procedure section 527.8(a).)
We are frequently contacted by employers with questions regarding various employment issues. The following are some questions we have received regarding travel time, together with some responses. Realize that many employment issues are fact specific. The following questions and answers are not intended to be comprehensive but to give the reader some ways to think about the issues and some citations for further research. We strongly recommend that you consult with legal counsel about your specific situation.
Can a company prevent one of its current clients from hiring away the company's employees?
Possibly. Generally, the company, as an employer, cannot restrict the movement of its employees. However, some California Courts seem to suggest that a narrowly defined contract provision between a company and its client may give the company the ability to prohibit “employee raiding,” or at least make it expensive for a client to steal an employee, which might be a hiring disincentive.
Under common law, contractual restraints on the practice of a profession, business, or trade were once considered valid as long as they were reasonably imposed. In 1872, however, California adopted a public policy that promoted open competition, thus rejecting the common law rule of reasonableness. This public policy is manifested in California Business and Professions Code Section 16600, which states:
MEAL AND REST PERIODS FOR NONEXEMPT EMPLOYEES
Our small and medium size business clients often have questions relating to their employment practices. When relevant California or Federal laws change or are clarified, we want our clients to be informed.
A recent California case brought some clarity in the areas of meal and rest periods. (Brinker Restaurant Corp. v. Superior Court L 1216356, 14 -24 (Cal., 2012).
SUMMARY PRACTICE POINTS:
1. Bona fide relief from duty and the relinquishing of control satisfies the employer's meal break obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under applicable law. In other words, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Of course, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.