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Smoking Law Turns Hazy on Warehouse Complexes

February 25, 2001

Q The office manager and part-owner of the business where I work smokes constantly and is very defensive about it. She allows employees and customers to smoke in this Orange County warehouse.

Isn't this a violation of the law? What government agency should I contact regarding such a violation?

--E.B., Glendora

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A California law prohibits smoking generally in enclosed places of employment. The law does not apply to warehouse facilities (except offices) with more than 100,000 square feet of floor space and 20 or fewer full-time employees.

Therefore, your office manager would be prohibited from smoking in the office but her smoking and smoking by others in the warehouse facility may or may not be illegal depending upon whether the facility meets these standards. Violations of this law may be reported to the county health department or a local law enforcement agency.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Working Through Breaks Depends on Your Status

Q I am an assistant manager at a retail store where we are scheduled for nine-hour shifts, taking a one-hour unpaid break.

Recently, we have been short-handed and my boss wants me to work through my break without getting paid. Is there a law against this? Could I refuse even if my employer offers to pay?

--B.H., Los Angeles

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A The answer depends on whether assistant managers at your store are hourly, nonexempt employees or salaried, exempt executives.

If they are hourly employees, they are entitled to overtime pay when they work more than eight hours a day or 40 hours a week. In addition, they would be entitled to a meal period of half an hour and two 10-minute rest breaks every nine-hour shift.

Salaried, exempt employees are not entitled either to overtime or to meal and rest breaks.

Employees are presumed to be nonexempt, hourly employees unless they meet two tests.

First, exempt employees must be paid a salary that is more than twice the state minimum wage of $6.25 per hour, calculated on a monthly basis.

Second, exempt employees must spend more than half their work time performing exempt duties--work that requires discretion and independent judgment.

In addition, to qualify under the executive exemption, the employee must manage the enterprise or one of its departments, customarily and regularly direct the work of two or more employees, and have the power to hire or fire other employees or to recommend such actions.

If you are a nonexempt employee, you are entitled to one hour of pay every time you are denied an unpaid lunch break lasting at least half an hour. In addition, you should receive nine hours' pay whenever you work through your hour lunch break during a nine-hour shift. The ninth hour is overtime, and should be paid at time and a half.

To make a claim for the one-hour penalty or the overtime premium, you should contact the California labor commissioner or consult an employment attorney.

You should not refuse your employer's request to work through your lunch break. Because the law provides a penalty (one hour's pay) for a violation of your right to an uninterrupted lunch break, a court could view your refusal to work through lunch as insubordination, an offense that ordinarily warrants discharge, rather than as exercising rights that are protected by California's wage and hour laws.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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