Labor & Employment Law

Perspectives on Brinker (Part II) -- When Must Employers Schedule Employee Meal Breaks

Posted on July 30, 2008
In a prior post on Brinker v. Superior Court (Hohnbaum), we examined what the decision means in terms of defining the duty of California employers to make meal and rest breaks "available" to employees.  In this post we look at what Brinker says about when during the day those breaks need to be provided...

Perspectives on Brinker: What Must a California Employer Do to Make Meal and Rest Breaks "Available" to Their Employees?

Posted on July 25, 2008
In Brinker Restaurant Co. v. Superior Court, ___ Cal.App 4th ___ (2008), the Fourth District Court of Appeal held that “meal periods need only be made available, not ensured.” Thus employers are not strictly liable for missed meal and rest breaks when an employee “merely show[s] that he did not take them regardless of the reason...

Perspectives on Brinker: What Must California Employers Do to Make Meal and Rest Breaks "Available" to Their Employees?

Posted on July 25, 2008
In Brinker Restaurant Co. v. Superior Court, ___ Cal.App 4th ___ (2008), the Fourth District Court of Appeal held that “meal periods need only be made available, not ensured.” Thus employers are not strictly liable for missed meal and rest breaks when an employee “merely show[s] that he did not take them regardless of the reason...

The Brinker Decision Generates A Lot Of Commentary

Posted on July 23, 2008
Here is a sampling of what the blogosphere is saying about yesterday's Brinker v. Hohnbaum decision: UCL Practitioner: I was co-counsel for the employees in the appellate-level proceedings, and my normal policy is not to blog about my own cases (with an occasional exception if they are already getting outside press or blogosphere coverage)...

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Meal and Rest Break Requirements Clarified By Court in Brinker v. Hohnbaum

Posted on July 22, 2008
The Appellate Court, Fourth Appellate District, Division One, issued a much awaited opinion today in Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008). The case is one of the first California state appellate court to rule on the parameters of employers’ duties under the  California Labor Code requiring rest and meal breaks for hourly employees...

Brinker v. Superior Court: Employer's Need Not "Ensure" Meal Periods Are Taken

Posted on July 22, 2008
The California Court of Appeal today issued its eagerly-awaited Brinker decision, which handed a big victory to employers and helped to clarify the standards that apply to the provision of meal periods under Labor Code section 512. To cut right to the chase, the Appellate Court summarized its decision as follows: Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so...

Brinker v. Superior Court: Employers Need Not "Ensure" Meal Periods Are Taken

Posted on July 22, 2008
The California Court of Appeal today issued its eagerly-awaited Brinker decision, which handed a big victory to employers and helped to clarify the standards that apply to the provision of meal periods under Labor Code section 512. To cut right to the chase, the Appellate Court summarized its decision as follows: Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so...

DLSE Public Hearings Air Concerns Regarding Meal Break Issues

Posted on July 21, 2008
Once upon a time, employee meal and rest periods were an obscure legal backwater, which was the exclusive province of hard-core human resources nerds and bureaucrats. But no longer. Class action meal period litigation has now become a multi-million dollar political football...

Department Of Labor's Tool For Posters and Recordkeeping Compliance

Posted on July 08, 2008
The U.S. Department of Labor (DOL) recently launched a new resource for employers - The FirstStep Employment Law Advisor.  The resource is designed to help employers determine which federal employment laws administered by the DOL apply to their business or organization, what recordkeeping and reporting requirements they must comply with, and which posters they need to post...

Braun v. Wal-Mart, Inc.: Wal-Mart Hammered For Meal and Rest Break Violations in Minnesota

Posted on July 08, 2008
Companies doing business in California frequently lament the “unique” burdens imposed by California wage and hour laws. But with all the attention on California wage and hour class action litigation, it is worthwhile to remember that many other states actually have similar laws...

Reporting Time or "Show Up" Pay

Posted on July 08, 2008
Reporting time pay is a form of “premium” pay that, like overtime or missed meal period compensation, is intended to discourage work scheduling practices that are deemed to create a special burden on employees. Reporting time pay, also called “Show-Up Pay,” is intended to discourage employers with variable work demands from deliberately over-staffing their operations and then sending home any “excess” workers without pay...

Five Common Mistakes In Sexual Harassment Policies

Posted on June 25, 2008
Rush Nigut wrote recently about five common mistakes he see employers make in drafting sexual harassment policies.  Rush makes very good points, here are a few highlights: The written policy does not provide and communicate in writing multiple channels for the complaint procedure...

IRS Mileage Rate To Increase 8 Cents July 1, 2008

Posted on June 24, 2008
The IRS announced yesterday that the IRS mileage rate will increase to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008.  Click here to see the IRS press release.  This is an increase of eight cents from the 50...

U.S. Supreme Court Issues Three New Employment-Related Decisions Today

Posted on June 19, 2008
The United States Supreme Court has just issued a 5-4 ruling on an age discrimination issue in Kentucky Retirement System v. EEOC and a 6-1-2 ruling on an ERISA issue in Metropolitan Life Insurance Co. v. Glenn.   In addition, the Court also ruled on a burden-of-persuasion issue on an age discrimination claim in Meacham v...

Attorney's Letter or DFEH Charge Triggers Employer's Duty to Tender Claim to Insurance Carrier Even if No Lawsuit Filed

Posted on June 18, 2008
Westrec Marina Management, Inc. v. Arrowood Indem. Co., contains some important lessons for employers who believe they have insurance coverage for employment claims.In Westrec, an employee’s attorney sent a letter on June 24, 2003 to the Company asserting that his client had been sexually harassed by supervisory employees, and inviting the Company to engage in a settlement discussion...

Schwarzenegger and Sacramento Republicans Look at Reforming Meal Period Rules

Posted on June 17, 2008
The California Legislature has once again missed its budget deadline. This is more of an annual tradition than news. But this year the deficit is particularly large and the resulting budget fight will therefore be especially brutal. For example, state Republicans want to put everything on the table, including non-budget items such as a reform of meal break rules...

Motion To Strike Class Certification Allegations Upheld By Appellate Court

Posted on June 16, 2008
Three Plaintiffs filed two separate class actions against AZ3, Inc., doing business as BCBG Maxazria (BCBG), on behalf of all managers and assistant managers in BCBG’s California stores. The complaints alleged causes of action for failure to pay overtime compensation (Lab...

U.S. Supreme Court Turns Down Employer's Appeal Regarding FMLA Rights

Posted on June 16, 2008
The United States Supreme Court rejected an appeal by Progress Energy, Inc. regarding the waiver of an employee’s rights under the Family and Medical Leave Act (“FMLA”). In Progress Energy v. Taylor, the Court rejected – without comment – Progress Energy’s appeal from a 4th Circuit Court of Appeal ruling that held an employer cannot induce to waive their rights under the FMLA...

Amaral v. Cintas Corporation: The Wide World of Local Wage Laws

Posted on June 16, 2008
The recent decision in Amaral v. Cintas contains a full plate of legal issues involving a city’s authority to regulate conduct outside its borders, employer’s duties to keep records, and a court’s discretion to reduce an employer’s potential penalties under the Labor Code Private Attorney General Act of 2004 (“PAGA”)...

"Holiday Pay" Is Not Considered An Employee's "Regular Rate Of Pay" For Calculating Overtime

Posted on June 10, 2008
In Advanced-Tech v. Superior Court, Ester Roman worked as a security guard for Advanced-Tech Security Services, Inc. (Advanced-Tech). Ms. Roman brought a class action lawsuit against Advance-Tech for violations of Labor Code sections 510, 1194, and 1198, as well as failure to provide accurate itemized statements to her in accordance with section 226 and unfair business practices in violation of Business and Professions Code 17200...

President Bush Signs Executive Order Requiring Federal Contractors to Use E-Verify System to Confirm Work Eligibility and Immigration Status

Posted on June 10, 2008
President Bush has signed an executive order requiring all federal contractors to use the federal E-Verify system to confirm that new hires are eligible to work in the United States.   E-Verify is a Web-based database that will report the status of an employee based on his or her SSN...

Warning to Employers: Following the Terms Of A Collective Bargaining Agreement Is No Defense To Employee Claims For Overtime, Meal and Rest Periods

Posted on June 10, 2008
Many employers believe that union and non-union labor law are two entirely different universes. In some respects this is understandable. After all, there is an extensive decades-old body of federal labor law regulating the relationship between management and organized labor...

U.S. Supreme Court Rules Against Public Employee

Posted on June 10, 2008
The United States Supreme Court ruled against an individual public employee who invoked the equal protection clause of the Constitution in support of her claim. The Court ruled, in a 6-3 decision, that individual public employees have a variety of protections from personnel actions, however, the equal protection clause of the Constitution is not one of them...

Blogging - As American As Apple Pie?

Posted on June 02, 2008
I read this post by Kevin O'keefe recently that challenges lawyers to blog.  Normally, I would have simply agreed and moved on with the next item on my list to do.  However, my brother was in China recently, and we spoke over the phone at one point and  I told him that he should check out a personal blog post I wrote about a trip my son and I took to see the Red Bull Air Race in San Diego...

Thompson v. North American Stainless, LP: Anti-Retaliation Protection is Expanded to Include Friends, Relatives and Anyone "Closely Associated" with a Complaining Employees

Posted on June 02, 2008
In Thompson v. North American Stainless, LP, the plaintiff alleged he had been fired because his wife -- who had previously worked for the same employer –filed a charge of discrimination against it with the EEOC. The trial court granted summary judgment against the husband on the ground that he himself had never engaged in any of conduct protected by Title VII – such as opposing the alleged discrimination or participating in the government investigation...

When Are "On-Duty" Meal Periods Permitted?

Posted on May 30, 2008
My recent post about Bufil v. Dollar Financial Group, Inc. (filed April 14, 2008, ordered published May 13, 2008) made a lot of readers ask, “When can an employer have an employee enter into an ‘on-duty’ meal period agreement?” As any reader of our blog knows, pursuant to Labor Code section 226...

"Retooling" Of The Blog

Posted on May 23, 2008
As some of our readers may have already noticed, we are changing a few elements of our blog.  With summer upon us, we thought it would be a good opportunity to retool.  We are changing the blog to better suit our readers as we learn the new technologies available to us...

Appellate Court Allows "On-Duty" Meal Period Class Action To Proceed

Posted on May 14, 2008
This case is a class action lawsuit filed by Caren Bufil for violations of California’s meal and rest break laws, and violation of California’s Unfair Competition Law against Dollar Financial Group, Inc. (Dollar). Bufil v. Dollar Financial Group, Inc...

Appellate Court Holds Network Director For Start-up Company Was Properly Classified As Exempt Employee

Posted on May 12, 2008
In a recently published opinion, Combs v. Skyriver Communications, Inc., the plaintiff Mark Combs appealed a judgment against him in an action to recover overtime pay and meal and rest breaks. He alleged that he was misclassified as an exempt employee while working for Skyriver Communications, Inc...

Today's BLR Teleconference On Hidden Risks In Using Social Networking Internet Sites To Conduct Background Checks

Posted on April 30, 2008
I would like to thank everyone on today's BLR teleconference on the pitfalls on using social networking sites to conduct background checks on employees.  I hope everyone enjoyed the seminar. As I promised, here are the five general caveats employers should follow when using social networking sites to conduct background checks on employees: 1...

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