I am a non-exempt employee in California. For the past 6 months, my boss has repeatedly tried to get me to join a gym and to join him and ot...

Question

I am a non-exempt employee in California. For the past 6 months, my boss has repeatedly tried to get me to join a gym and to join him and other team members to workout on our lunch break.

I am not interested in joining the gym as I already have a gym at my apartment building and am not interested in paying additional monthly fees. I have clearly told this to my boss several times, but he continues to bring up me joining the gym on a weekly basis. I asked him if the company would cover the membership if it was so important to him, but he said it was something I needed to figure out on my own (and pay for.)

Now today, approximately 6 months after he first started asking me to join the gym, he brought up my non-attendance to these gym outings in my monthly performance review, saying it showed I'm not a team player. On the written review he wrote "Focus area for next month-engage office and team: go to the gym with us."

What recourse do I have available? I do not want to have to spend my wages on a gym membership, nor do I want him telling me what to do with my lunch break. However, it is becoming apparently clear that this issue is affecting his evaluation of my performance.

How do you recommend I proceed?

Answer

Your boss is violating the law in multiple respects. First, your off-duty meal period is just that: off-duty. It is YOUR time and your boss has no business telling you how to spend it. Thus, if he requires you to go to the gym with co-workers during your lunch, he has failed to provide you with a meal period and owes you an hour of extra pay for each day he requires you to do so, PLUS he must pay you for the time you are at the gym.

Next, if your employer requires that you attend a gym, then the employer must pay the membership dues. This is codified in California Labor Code section 2802, which requires employers to "indemnify" employees for expenses that the employee incurred at the direction of the employer.

Finally, retaliating against you (such as writing a negative review) because you stick up for your employee rights is also a violation of the law.

You should document everything in writing. Keep a copy of your performance review at home. If your performance review includes a space for you to respond, you might want to consider writing something respectful that states your desire to spend your lunch break as you see fit, and that you should not be required by your employer to spend your hard-earned wages on something that you neither need nor want. You may also want to write your boss an email describing the situation and informing him of what the law requires--again, respectfully.

However, telling your boss that the law is on your side might make him even more upset and might cause him to retaliate against your further. While it is illegal for your boss to retaliate against you, it doesn't mean he won't do it.

In short, you are in a tough spot, with a boss who just doesn't get it. It is really up to you whether and how you want to respond to your boss. But know that the law is on your side. And again, document everything in writing (even if it's just in your own personal journal). If this situation leads to litigation, having things in writing will be extremely valuable for your case.

Good luck!