Must I pay new employee for reading the safety manual? I live in California. Soon I will hire a household employee to cook meals for me in my home. Per California OSHA law the employee must be given and read a kitchen safety manual. Must I pay the employee for the time spent reading the kitchen safety manual?
Executive Summary Yes, you must pay your employee (if the person is indeed an employee) to read the manual. This is because, (1) as you note in your question, reading the manual is a state OSHA required part of the job, and (2) hourly employees must be paid at least minimum wage for all hours they work and there is no exception for time spent reading safety manuals. Furthermore, household cooks who are employees who are paid by the hour are not exempt from the minimum wage. There is no really plausible exception to the requirement to pay a minimum hourly wage that would apply to someone who is an employee in this position. For example, this person could not plausible be classified as a salaried employee or manager in this scenario for FLSA purposes. You could, of course, set a reasonable expectation regarding how much time should be allocated to reading the manual, so long as the expectation you set is indeed reasonable - five minutes would be unreasonably short, but 20 hours to memorize it would be unreasonably long. Is The "Employee" An Independent Contractor? It is conceivable that the person you describe as an employee is really an independent contractor, rather than a employee, and hence not subject to minimum wage laws. For example, you do not have a duty to determine that a catering company that serves many customers and is its own business providing food for you on an irregular basis, or a third-party restaurant that delivers either itself or through a third-party delivery service, is paying minimum wage or complying with work safety laws like OSHA, because they are independent contractors. But, there is nothing in your question that suggests that this is the case. (Note that if this person is an "employee" and not an "independent contractor" that it is also important that you obtain worker's compensation and pay withholding taxes for your domestic employee; often this is done via a third-party payroll service.) Applicable Law The Fair Labor Standards Act of 1938 as amended, 29 U.S.C. § 201, et seq., requires you to pay every hourly employee the federal minimum wage, plus overtime if applicable, from "Portal to Portal" (i.e. from showing up to work until leaving work, because commuting time is not counted as work for purposes of the FLSA). Hours worked is defined as follows by the FLSA at 29 U.S.C. § 203(o), contains no exception for time spent reading a safety manual: In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. This states with respect to employees in domestic service at 209 U.S.C. § 206(f): Any employee— (1) who in any workweek is employed in domestic service in a household shall be paid wages at a rate not less than the wage rate in effect under subsection (b) of this section unless such employee’s compensation for such service would not because of section 209(a)(6) of the Social Security Act 42 U.S.C.A. § 409(a)(6)constitute wages for the purposes of title II of such Act [42 U.S.C.A. § 401 et seq.], or (2) who in any workweek— (A) is employed in domestic service in one or more households, and (B) is so employed for more than 8 hours in the aggregate, shall be paid wages for such employment in such workweek at a rate not less than the wage rate in effect under subsection (b) of this section. The referenced Section 206(b) is the currently effective federal minimum wage (currently $7.25 per hour). The cross-reference to the Social Security Act states that employment taxes paid by the employer (such as the employer part of FICA taxes) do not count towards paying the minimum wage. California has a parallel state minimum wage of $10 in 2017 which is substantially similar except in amount.
I have the same line in a contract that was just sent to me. So I did some quick research into this. However, I AM NEW TO THE SYSTEM AND DO NOT KNOW IT WELL!!, so please do not act on this information without seeking further advice from the relevant professionals. From what I can gather, the "Arbeitszeitgesetz (ArbZG)" is the law that governs working hours in Germany. Here is a link: http://www.gesetze-im-internet.de/bundesrecht/arbzg/gesamt.pdf I used Google Translate to translate this information and found that in §3 it states that "The default daily working time must not exceed eight hours. It can only be extended up to ten hours if within six calendar months or 24 weeks an average of eight hours working day is not exceeded." This would lead me to believe that even if overtime is not paid as extra on top of your salary, they must give you the time off at another time to keep the average working day to 8 hours. **However, as the working week is Monday - Sat, the average working hours per week may be calculated as 48 hours per week, and not 40! Once again, I am not fully sure of my information, so use at your own risk!!
I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA): This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases.
I've been wondering if it is possible to hire / create a company with someone who would open a restaurant in my place and manage it according to my guidelines. Yes, of course. You can do it just like you described: Create a company, hire employees, (let them) open the restaurant. You, as the owner of the company, could set up whatever guidelines you have in mind, and your employees would be bound by them (limited only by general laws, such as on health and safety). Some caveats, however: You will need money to set this up - for buying / renting space for the restaurant, for paying your employees, obtaining supplies, initial marketing etc. It may take a while until the restaurant earns money (if ever), and you'll need money in the mean time. Someone will need to manage, that is make decisions. You can do that yourself, but then you will work for the restaurant (which you write you do not want to do). Or you can hire someone to do it for you, but that will cost more (in salary), plus you will have to find someone you can trust. That's a tradeoff for you to make. I guess it'd be like an intellectual property. That depends, but usually there will be little in terms of intellectual property. If you have a unique idea for the restaurant, you could patent it, but there are many restrictions on what you can protect, and ways around it, plus this also costs money (a lot if you need a lawyer's advice). Apart from that, you can register a trademark for the restaurant, but that only protects the name / logo, not any ideas. Finally, some of your ideas might be considered trade secrets, but again the protection is limited. In general, there is no blanket "idea protection". If you have a good idea for a restaurant, in most cases other restaurants will be able to copy them, possibly with slight changes - take that into account.
Who entered the contract with the restaurant? In order for the restaurant to collect from a person, that person must have entered into a contract for the meal. That is, from the restaurant's point of view, they must have indicated that they would like some food and, since everyone knows how restaurants work, they know that the food will have to be paid for. Whether a given person entered a contract will depend on the specific facts. If they opened their mouth and said to the waiter something like “I’ll have the chicken”, they almost certainly entered a contract and they are obliged to pay. This is even if they had an expectation that someone else would pay for them - the restaurant is not involved in any other contracts or arrangements you might have with third-parties. You ordered, you’re on the hook. In a situation where you didn’t order, the answer is still probably yes, you have to pay. Again, because you know how restaurants work, by eating the meal that was placed in front of you rather than saying, “Just so you know, your contract for this meal is with that guy over there, is that okay?”, you probably entered a contract by your action of eating the meal. More broadly, when a group collectively enters a contract with the restaurant, they are probably agreeing with the restaurant that they will be jointly and severally bound. That is, each is responsible for all and the restaurant can pursue any or all of the people they have a contract with. A minor dining with their parents is probably not entering a contract with the restaurant. Not because minors can’t enter contracts (they absolutely can) but because of the normal expectation that the parent is entering the contract. This is because of a principle that contract terms may be implied by custom. That is, if there is a general understanding that this is the way things are done, then that will be something the law will enforce. This is a simple expedient adopted in order to make the world work - if every term of every contract had to be explicitly detailed in advance this would be a) unworkable and b) impossible. Even if there is no contract, the restaurant has equitable remedies like unjust enrichment. The diner has had the benefit of the meal and it would be unjust if the restaurant was left out of pocket. Equitable remedies can be even more complicated than contract law so we’ll just leave it at that. As for whether the restaurant will accept a promise from one diner that another will pay, that’s up to them.
If an employee takes home information that his or her employer considers confidential, that would be a matter of company policy. The employer could discipline or fire the employee if it learned of the incident, and chose to act. If the information is considered to be a trade secret, or part of one, disclosing it or mishandling it so as to risk disclosure could be a crime under US law. However, only in unusual cases is criminal action taken on such matters, normally it is left to civil lawsuits or internal company action. I do not know if Canada has a similar law.
I would recommend talking to an adult person in HR. I'm quite sure they will notice that what your manager wants to do is more than dodgy, and doing something dodgy may be in the interest of your manager, but not in the interest of the company. The best thing is to go to HR, acting as if a mistake has been made, and point out to them what your start date was, and that the new contract has the incorrect starting date, and they need to fix this mistake or you can't sign the contract. If they insist you sign it, then you DON'T sign it. If they say you will be fired if you don't sign it, then you tell them that in that case you would get legal advice. BTW. You definitely don't sign this as it is. PS. This answer was posted on workplace.stackexchange, not law.stackexchange, so please don't complain if there is no legal content.
Would breaking a rule in the handbook constitute breach of contract? Generally speaking, yes. Of course, most employment contracts are "at will" so a breach of contract often isn't necessary to terminate employment. Does my employer's updating the handbook constitute a unilateral change of contract? It depends upon what is changed in the update to the handbook. Typically an employment contract would have a term that says something to the effect of "employee shall devote his full time effort to perform the duties he is directed to perform by employer in a satisfactory manner." If the employee handbook says, "part of every employee's duties includes cleaning up his work area at the close of business each day, locking his file cabinets and shutting down his computer", this would typically simply be a definition of the duties of the employee which the employer reserved the right to change in the original employment contract, and not a unilateral change of contract. On the other hand, if the employee handbook says, "vacation days may not be taken during December" when the employee's contract simply said that "you have ten vacation days per year", that might constitute a unilateral change of contract which might not be enforceable for an employee with a fixed term of employment who was not an employee at will, without additional consideration. Locale is UK but (I assume) contract law is pretty universal so answers specific to any region are welcome. I have answered based upon general contract and employment law, but the UK frequently sets mandatory standards for different kinds of contracts and modifies common law rules related to contracts (much more so than the U.S.), so it wouldn't be very surprising if this were modified by a statute of which I am not aware. We have UK lawyers who contribute to Law.SE and they can chime in if there are particular statutes in the UK that apply to this question.