Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

On January 12, 2009, the Bureau of Labor and Industries (BOLI) clarified meal and rest period requirements in situations where providing a 30-minute uninterrupted meal period is not feasible.

The revised rule (OAR 839-020-0050) still requires the same basic 30-minute, unpaid meal period in which the employee is relieved of all duties for shifts longer than six hours, but also states that an employer need not provide an employee with a 30-minute uninterrupted meal period if it can demonstrate that:

• Failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
• Industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which the employee is relieved of all duties; or
• Providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose and undue hardship on the operation of the employer's business.

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On January 14, 2009, the California Supreme Court granted review in Brinkley v. Public Storage, Inc. which, like Brinker Restaurant Corporation v. Superior Court, held that employers are only required to “provide” meal and rest breaks and, absent a policy or practice which discourages or prevents employees from taking their meal and rest breaks, claims for missed meal and rest breaks are not suitable for class treatment. As expected, the Supreme Court is holding the Brinkley case pending determination of the earlier Brinker Restaurant case. This means there will be no activity in Brinkley until Brinker Restaurant is decided.

The opening brief in Brinker Restaurant was filed on January 20, 2009. Respondent and amici (friends of the court) briefs will follow, as well as the final reply brief, a process that can take several months. At that point the case will be scheduled for oral argument. Check back on this blog for the progress of Brinker Restaurant.

This blog entry was authored by AnnaMary Gannon.
 

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A federal district court judge granted partial summary adjudication to SkyWest Airlines, Inc., holding that a former employee’s claims under California wage and hour laws are pre-empted by federal law. Specifically, the court found that the former employee is not entitled to California’s daily overtime and meal and paid rest periods because they conflict with federal law – Railway Labor Act (RLA), 45 U.S.C. § 151-88.

Tiffany Blackwell, a former customer service representative for SkyWest, sought relief for multiple alleged violations of state law including claims that SkyWest failed to compensate her for daily overtime hours and provide her with meal and paid rest periods. SkyWest countered that Ms. Blackwell was a member of SkyWest Airlines’ Frontline Association (SAFA) and was subject to SkyWest-SAFA’s negotiated collective employee contract, which governed the terms of her employment.

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For the past several years, plaintiffs have routinely sought punitive damages in their wage and hour actions under the California Labor Code. A December 3, 2008 decision by the California Court of Appeals for the Fourth Appellate District may put a stop to that practice.

The plaintiff in Brewer v. Premier Golf Properties sued her former employer for denying her meal and rest breaks, failing to pay her minimum wage for all hours worked, and not providing her with accurate itemized wage statements. The jury awarded the plaintiff $26,300 in unpaid wages and penalties and, after finding that the defendant employer had engaged in malice, awarded the plaintiff an additional $195,000 in punitive damages.

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Now that the California Supreme Court has accepted review of Brinker Restaurant Corporation v. Superior Court (Hohnbaum), Supreme Court No. D049331 (2008), California employers are hopeful that the Supreme Court will affirm the well-reasoned decision of the Court of Appeal explaining an employer’s obligation to provide meal and break periods, as opposed to ensure that the meal and break periods are actually taken. Opening briefs in Brinker are due to be filed with the Supreme Court on January 20, 2009.

Immediately following the Court of Appeal’s decision in Brinker, the California Labor Commissioner issued a memorandum to all Department of Labor Standards Enforcement staff to follow the rulings in Brinker. When the Supreme Court granted review, the Labor Commissioner withdrew her memorandum, but directed DLSE staff to follow the numerous federal court decisions that concluded that, under California law, it is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. For more information on the Labor Commissioner’s memorandum and citations to the federal cases addressing meal and break periods, see the Littler Mendelson ASAP, California Supreme Court Grants Review to Brinker – Employers Await Answers on Meal Period Obligation (October 2008).

The California Labor Federation, which represents more than 1,200 labor unions in California, protested loudly that the Fourth District Court of Appeal’s decision in Brinker merely created a split with the Third District’s earlier decision in Cicairos v. Summit Logistics Inc. (2006) 133 Cal.App.4th 949. In Cicairos, the court quoted a 2002 DLSE Opinion Letter that employers have “an affirmative duty to ensure that workers are actually relieved on duty.” The Supreme Court declined to grant review in Cicairos, as well as a request to have the opinion depublished. The defense bar and, fortunately, the California Labor Commissioner, read Cicairos as in accord with Brinker that an employer need only provide meal and rest breaks but, on unique facts, found that Summit Logistics failed to make meal and break periods available to its delivery drivers.

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