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

By Bill Allen

Relying on the U.S. Supreme Court’s recent decision in Comcast Corp. v. Behrend, the U.S. District Court for the Central District of California denied Rule 23 class certification of California state law claims for off-the-clock work and unpaid work time during meal periods in Forrand v. Federal Express Corp.*

First, the plaintiff alleged that she and other hourly employees were not paid for work performed during the time between their clock-in times and their scheduled start times. The district court had previously denied class certification on this claim, but in 2010 the Ninth Circuit reversed and remanded that decision to “determine whether the level of FedEx’s control over employees within the proposed general class when they are on-the-clock but off-shift” was sufficient to render that time compensable under California law. On remand, the district court noted that Comcast requires a plaintiff “to bring forth a measurement method that can be applied classwide and that ties the plaintiff’s legal theory to the impact of the defendant’s illegal conduct.” The court found that the plaintiff’s proposed damages methodology, which assumed the entire gap between clock-in and the start of paid time was compensable, could be applied classwide, but failed “to tie California law to liability and a reliable measure of damages.” The court found that the plaintiff’s proposed class claim raised factual questions regarding whether each individual employee was in fact working and/or under the employer’s control during the gap period, and therefore individual factual inquiries predominated over classwide inquiries.

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By Martha Keon and Bill Simmons

Last week, a divided U.S. Supreme Court ruled in Genesis HealthCare Corporation v. Symczyk, that if the Fair Labor Standards Act (FLSA) claim of a lead plaintiff in an FLSA collective action becomes moot before anyone else opts in, the mere presence of collective action allegations in the complaint is not sufficient to make the FLSA claim justiciable, and the FLSA claim should be dismissed for lack of subject matter jurisdiction.

Background

Laura Symczyk was employed as a registered nurse by Genesis Healthcare Corp. in Philadelphia for eight months during 2007. Two years after she left, Symczyk filed a collective action against Genesis in federal district court, claiming Genesis had violated the FLSA by automatically deducting 30 minutes of time per shift for meal breaks, during which she claimed compensable work had been performed. Symczyk asserted her claims on behalf of herself and all employees similarly situated, seeking back pay, liquidated damages and attorney's fees. When it answered the complaint, Genesis served Symczyk with an offer of judgment under Federal Rule of Civil Procedure 68, offering her $7,500 for alleged unpaid wages, plus attorney's fees, costs, and expenses as determined by the court. Under Rule 68, a plaintiff who rejects an offer of judgment and then secures less at trial is liable for post-offer costs (such as mileage fees to subpoenaed witnesses, court filing fees, and costs for transcripts and photocopying). Symczyk did not accept Genesis' offer of judgment, and it expired.

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By Bill Allen

In Martin v. Citizens Financial Group, Inc., No. 2:10-cv-00260 (E.D. Pa. Mar. 27, 2013), Judge Goldberg of the Eastern District of Pennsylvania decertified an FLSA collective action involving 843 opt-in plaintiffs who had worked in a variety of hourly positions at over 1,000 bank branches in nine states. The plaintiffs alleged that the defendant’s unlawful practices included prohibiting employees from recording all time worked in excess of 40 hours in a week, erasing or modifying employees’ time records to eliminate or reduce overtime hours, providing “comp time” in subsequent weeks in lieu of paying overtime, and requiring employees to work during unpaid breaks. The district court held that the plaintiffs had failed to establish they met the FLSA’s “similarly situated” requirement.

Although the court found the plaintiffs’ evidence tended to establish that the putative class members may have been denied overtime, the plaintiffs were unable to produce “substantial evidence of a single decision, policy, or plan” that affected employees in the same way. Rather, the plaintiffs reported that the overtime denial decisions were made independently, either at the branch or regional level, and were in direct conflict with the company’s written policy requiring compliance with all state and federal overtime compensation rules. The court noted that the 435 declarations submitted by the plaintiffs themselves showed frequent disparities in the methods in which the plaintiffs alleged they were denied overtime.

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By Jennifer Ciralsky and Sophia Behnia

In Wang v. Chinese Daily News, Inc., on remand from the U.S. Supreme Court, the Ninth Circuit Court of Appeals applied the Supreme Court’s decision in Dukes v. Wal-Mart to reverse and remand a federal district court decision certifying a California state wage law class action. Like Dukes, Wang has had a somewhat protracted history. Following certification as an FLSA collective action, and prior to the Supreme Court’s decision in Dukes, the district court certified the plaintiffs’ state wage law claims as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure (FRCP) or, in the alternative, under Rule 23(b)(3). Following a 16-day jury trial, the plaintiffs were awarded over $2.5 million. The company appealed and the Ninth Circuit affirmed. On appeal to the U.S. Supreme Court post-Dukes, the Court vacated the Ninth Circuit decision and remanded for reconsideration in light of its decision in Dukes.

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Building upon a growing body of case law finding automatic-deduction meal break claims are not suitable for class or collective action treatment, an Ohio federal judge decertified a collective action against a national system of medical and rehabilitation care facilities by registered nurses, licensed practical nurses, certified nursing assistants, and admissions coordinators who claimed they were not paid for missed or interrupted meal breaks that were automatically deducted from pay. In Creely v. HCR ManorCare, Inc., Littler attorneys convinced the court that the employees’ experiences were too diverse to allow the case to proceed as a collective action under the Fair Labor Standards Act. To learn more about the decision, see Littler's Healthcare Employment Counsel blog.

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In White v. Baptist Memorial Health Care Corporation, 2012 U.S. App. LEXIS 22752 (6th Cir. 2012), the U.S. Court of Appeals for the Sixth Circuit held that, if an employer establishes a reasonable process for an employee to report work performed during unpaid breaks, it is not liable for non-payment if an employee fails to report the work performed through the established process. This is a welcome decision for employers, who increasingly are targeted with claims that they “should have known” about unreported off-the-clock work allegedly performed by employees. To learn more about the decision, please continue reading at Littler’s Healthcare Employment Counsel.

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Washington's highest court has ruled that missed paid rest breaks count as "hours worked" that trigger overtime obligations for employers. According to the court, employers must add missed rest break time to their employees' hours actually worked, and pay an overtime premium for any resulting hours over 40 in a workweek. Thus, an employee who works 40 hours in a workweek and misses a required 10-minute paid rest break is owed compensation at the overtime rate of one and one half times the regular rate for the missed 10-minute rest break. To learn more about the decision, please see Littler's ASAP, Washington State Supreme Court Orders Overtime Payment for Missed Breaks, by Daniel Thieme and Breanne Sheetz.

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Courts are continuing to reject class and collective actions asserting claims against hospitals for automatic meal-break deductions. Most recently, in Camilotes v. Resurrection Health Care Corporation, a federal district court in Illinois decertified an FLSA collective action and denied certification of a state law class action asserting such claims. This case, and others like it that have denied certification or granted decertification in automatic meal-break deduction cases, provide guidance on steps that healthcare employers can take to reduce the risk of class actions in these types of cases. To learn more about the decision, please continue reading at Littler's Healthcare Employment Counsel.

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By Craig Brown and Inna Shelley

As healthcare providers continue to face a sea of wage and hour class actions, Littler attorneys successfully convinced the Sixth Circuit Court of Appeals to affirm decertification of an FLSA collective action against Baptist Memorial Hospital, a large Tennessee hospital system. In Frye v. Baptist Memorial Hospital, the plaintiff brought a collective action, claiming that the hospitals’ policy of automatically deducting pay for employee lunch breaks violated the FLSA’s requirement to pay employees for all the time worked.

The district court initially granted conditional certification to the class under the more lenient standard courts have generally applied at the initial notice stage in FLSA collective actions, but following discovery the court decertified the action because the plaintiff failed to show that other would-be class members were similarly situated. It also found that the plaintiff failed to establish a common FLSA injury from the automatic deduction policy because the vast majority of opt-in plaintiffs were aware of the policies for reporting work during breaks, were paid when they properly reported working, and were not discouraged from or retaliated against for reporting missed breaks. The district court also refused to find a common injury based on the hospitals’ alleged failure to monitor their automatic deduction policy for FLSA violations because it found the vast majority of employees knew the policies for reporting hours worked during meal breaks and the hospitals were unaware that their procedures for reversing the deductions were not working.

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Following a growing trend among courts in FLSA collective actions, a federal judge in the District of Columbia refused to certify a broad group of employees asserting claims in connection with an automatic meal break deduction policy. In Dinkel v. Medstar Health, Inc., the plaintiffs, who worked at one of the nine hospitals within Medstar Health’s network, sought to certify a class of all employees subject to automatic meal break deductions at all nine Medstar Health hospitals. The plaintiffs claimed that the auto-deduct policy, which allowed employees to request payment for missed meal breaks, “was coupled with a common practice of imposing limitations on, discouraging, and ignoring efforts to recover pay for missed meal breaks.” To learn more about the decision and its potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel.

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By Christopher Anderson

The Tennessee General Assembly recently amended the state’s meal and rest break law to require meal breaks for tipped employees in the food and beverage industry. Fortunately, the new law also allows tipped employees to waive their right to meal breaks as long as employers follow a very specific process.

Under Tennessee law, employers must grant employees a 30-minute unpaid meal break unless the nature of the business provides “ample opportunity [for employees] to take an appropriate meal break.” Before the recent amendment, Tennessee employers in the food and beverage industry were not obligated to grant rest breaks to their tipped employees. In the interest of providing regulatory guidance to employers in the industry, the Tennessee Department of Labor determined that waiters and waitresses fall within the exception to the meal break requirement because, by the nature of the business in which they work, there is ample opportunity to take a meal break. As a result of the Tennessee DOL’s guidance, employers in the food and beverage industry were able to avoid disruptions in service caused by meal breaks and provide the uninterrupted attention that is vital to customer satisfaction.

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By Julie Dunne and Alison Hightower

The California Supreme Court’s much-anticipated decision regarding how employers are supposed to manage meal periods and rest breaks is finally here! The unanimous decision in Brinker Restaurant Corporation v. Superior Court was issued today, and it is largely a win for California employers. Littler will sponsor webinars providing a detailed analysis of the decision on April 17, 2012, from 10 to 11 a.m. PST, and on April 26 from 10 to 11 a.m. PST. In the meantime, here are the highlights.

Duty to Relieve Employees of Duty

The California Supreme Court held that an employer must relieve employees of all duty during their meal period, with the employee thereafter at liberty to use the meal period for his or her own purpose. Importantly, the court rejected the plaintiffs' argument that the California Wage Order requires employers to ensure that no work is done during an employee’s meal period. If an employee continues to work after the employer relinquishes control, the employer will be liable for straight pay only when it knew or reasonably should have known that the worker was working through the authorized meal period. The court thus clarified that premium pay (an extra one hour’s wage) is not owed when the employer relinquishes control and the employee nevertheless continues to work.

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A federal district court in California recently issued a decision in Dilts v. Penske Logistics, LLC, holding that motor carriers that transport property are not subject to California’s meal and rest break laws because such laws are preempted by the Federal Aviation Administration Authorization Act. To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, Federal District Court Holds Motor Carriers Are Not Subject to California's Meal and Rest Break Laws, by Michael Gregg.

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UPDATE: In an unusual move, the California Supreme Court accepted a post-argument brief concerning the “rolling 5” issue – whether meal periods must be provided for every 5 consecutive hours of work, e.g., in an 8-hour shift, if an employee takes a meal period after 3 hours, then works a further 5 hours after the meal period, must a second meal period be provided. Also, the brief addresses whether the court’s decision will apply prospectively or retroactively. If applied retroactively, the statute of limitations for meal period violations is 3 years, but challenges could also be filed under California’s unfair competition law, which has a 4-year statute of limitations.

By Alison Hightower

The long awaited oral argument in the seminal meal and rest break decision involving Brinker Restaurant finally occurred today. Before a packed courtroom, lawyers for a hopeful class of waiters and waitresses and the representatives of California employers battled it out before the seven justices of the California Supreme Court.

At issue are critical issues of interpretation that plague California businesses daily, and have sparked literally thousands of lawsuits, most brought as class actions seeking to recover the one hour “premium pay” owed for every missed meal or rest period.

• What does it mean to “provide” an uninterrupted 30 minute off-duty meal period—is it sufficient to make that meal period “available” to the employees and allow the employee to decide whether to take that time off, or must the employer “ensure” that the employee in fact did no work for 30 minutes?
• When must that meal period be taken to be legally compliant—could Brinker require employees to take that meal period within the first two hours of their shifts so they would be available to service customers during busy periods?
• “Must a meal period be provided every five hours? If an employee takes an early meal period after the second hour, would the employee be entitled to two meal periods in one eight-hour shift?”
• Must a rest period be offered within the first four hours of a shift, or could Brinker delay the rest period until after 4 hours had been worked?
• Must that rest period be offered before the meal period is made available?

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• Brinker Restaurant Corp. v. Superior Court">Share Link

Three years after review was initially granted, on November 8, 2011, the California Supreme Court will hear oral arguments in Brinker Restaurant Corporation v. Superior Court and determine whether under California law an employer's obligation is to provide meal and rest periods, or to ensure that meal and rest breaks are actually taken.

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In the wave of class litigation flooding the courts in California claiming rest breaks were not permitted, one court recently denied class certification based on a common sense conclusion that the experience of a handful of guards could not be assumed to be the experience of thousands.

In a recent case, Temple v. Guardsmark LLC, two security guards sought penalties on behalf of a class of thousands of guards based on their employer’s alleged failure to provide “off-duty” rest periods and accurate wage statements.

The guards worked “solo” at various client sites and thus had no one to relieve them from duty for breaks. They alleged company policies prohibited them from leaving their posts to take ten minute rest periods, and they supported their motion for class certification with sworn declarations from fourteen guards saying they took no breaks. Defendant Guardsmark countered with 96 sworn guard declarations, each attesting to having regularly taken rest breaks, spending the time engaged in a wide variety of personal activities.

Faced with the dueling declarations, the question before the court was not whether Guardsmark in fact failed to legally provide rest periods, but whether the two security guards who sought to be class representatives could offer common evidence to prove that thousands of guards in fact were illegally denied rest breaks without trying the claims of each guard one-by-one. The court found that the guards had not shown they could resolve these claims based on “common proof.” The evidence instead suggested that many guards—at least the 96 who supported their employer—did in fact take rest breaks, and even the evidence offered by plaintiffs raised questions such as whether idiosyncratic directions of a lone wolf supervisor rather than a common company-wide policy was the reason for some employees being deprived of rest breaks.

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In the same week that one California court held that employees are entitled to two hours pay for any day in which they did not receive required meal and rest breaks, employers received welcome news from another California appellate court, which found employers do not have to ensure employees receive their meal breaks to avoid class claims for extra pay.

California’s Labor Code requires employers to “provide” meal periods to employees, but the precise obligation that provision imposes has been the subject of conflicting court opinions. Employees contend that the employer must ensure that they actually receive a break of at least 30 minutes, whereas employers argue that the word “provide” means that employers must merely make meal periods available to employees.

A California court of appeal has now agreed with employers, holding that the word “provide” should be construed according to its dictionary meaning of “to supply or make available.” In Tien v. Tenet Healthcare, an employee sought to certify a class of hourly non-exempt employees who supposedly were denied 30-minute meal periods and ten-minute rest breaks. The trial court waffled, first certifying several classes, then reversing itself, eventually agreeing with the employer.

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A California Court of Appeal rendered a potentially significant blow to California employers on Wednesday. In the first reported decision of its kind from a California appellate court, the court in United Parcel Service, Inc. v. Superior Court, held that California Labor Code section 226.7 permits an employee to recover up to two premium payments per work day: one for failure to provide a meal period and another for failure to provide a rest period.

Labor Code section 226.7 provides:

(a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

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On January 26, 2011, the California Supreme Court created more uncertainty regarding meal and rest period obligations in California by granting review of the Court of Appeal’s published decision in Hernandez v. Chipotle Mexican Grill, Inc. As we discussed more fully on November 5, 2010, in Hernandez, the Court of Appeal affirmed the trial court’s ruling that an employer need only make meal periods available to employees, and affirmed the denial of class certification, holding that individual issues predominated over common issues as some employees received both meal and rest breaks, some missed only rest breaks, some missed only meal breaks, some missed both, and even the named plaintiff admitted that the ability to take breaks depended on the location where he worked.

With the grant of review and depublication of Hernandez, employers are once again left to read the tea leaves while waiting for the California Supreme Court to decide Brinker Restaurant Corporation v. Superior Court. In October 2010, the Court granted review in Faulkinbury v. Boyd & Assocs., which had affirmed an employer’s duty to make meal periods available, but held that certification was improper in that case. In May 2010, the Court let stand the published decision in Jaimez v. Daiohs, which affirmed the lower court’s rulings that meal periods must be made available, and that in certain cases, certification of such claims is proper.

Oral argument has not been scheduled yet in Brinker.

This entry was written by Erica H. Kelley.

Photo credit: shirhan

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A California Court of Appeal has upped the ante in the ongoing legal debate concerning meal and rest period obligations in California (pdf), unambiguously asserting that an employer is only obligated “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.” This holding is all the more notable given the court’s subsequent order certifying its opinion in Hernandez v. Chipotle Mexican Grill, Inc. (pdf), No. B216004, as suitable for publication. Consequently, it is currently citable and available as precedent.

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Employers of unionized commercial truck drivers and unionized employers in the security services, construction and public utilities industries received some welcome relief from burdensome California meal period regulations with the recent enactment of Assembly Bill 569.

AB 569 was introduced by state representative for Riverside/San Bernardino District 63 Bill Emmerson in February of 2009. It was one of many bills attempting to deal with the complex thicket of regulation of meal and rest breaks, which has resulted in a deluge of class action litigation in California in recent years. Attempts to enact broader relief have not thus far succeeded. However, the current law was passed by the State Assembly by a 72-2 margin on May 21, 2009. It will go into effect on January 1, 2011 assuming it is not overturned or otherwise suspended pending judicial resolution of any challenge during a 90 day period following its enactment.

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The City of Austin, Texas recently passed an ordinance requiring that employers in the construction industry give employees a rest break of no less than 10 minutes for every four hours worked. The rest break must be scheduled as near as possible to the midpoint of the work period, and an employee may not work more than 3.5 hours without a rest break. Narrow in scope, the new ordinance applies only to employees performing construction activities at a construction site. An employee is not entitled to a rest break if he or she works less than 3.5 hours or spends more than half of his or her time engaged in non-strenuous work in a climate-controlled environment. Employers must post a sign (in English and Spanish) describing the rest break requirements in a conspicuous place or in areas where notices to employees are customarily posted. An employer that fails to give the required rest break or that fails to post the required sign can be found guilty of a Class C misdemeanor. The ordinance also provides for civil fines of $100 to $500 for each day a violation occurs. The ordinance does not expressly provide for a private right of action. Enacted on July 29, 2010, the ordinance amends Title 4 of the Austin City Code and becomes effective immediately upon enactment.

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The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth. To learn more about the fact sheet, please continue reading at Littler's Washington D.C. Employment Law Update blog.

Photo credit: camilla wisbauer
 

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The Oregon Bureau of Labor and Industries (BOLI) has amended its administrative rules pertaining to minimum wage, overtime, and working conditions effective June 1, 2010. Generally speaking, the amendments (pdf) conform Oregon’s minimum wage and overtime exemptions to federal law and clarify the rules for meals and rest periods.

First, the amended rules provide that individuals employed in domestic service positions who provide companionship services for individuals who are elderly or infirm (and therefore unable to care for themselves), are not required to be employed by the individual for whom they provide such services in order to be exempt from minimum wage.

Second, under the amendments, Oregon law is consistent with federal law by providing that certain computer system analysts, computer programmers, software engineers, or other similar skilled workers must be paid the equivalent of $27.63 per hour for each hour worked (although not necessarily on an hourly basis).

Third, the amendments state that, except as otherwise provided in the administrative rules, employees who are not relieved of all duties for 30 continuous minutes during their meal period must be paid for the entire 30-minute meal period.

These rules became effective as of June 1, 2010.

This entry was written by Janice Kim.

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Effective March 1, 2011, retailers who conduct business in Maryland must provide their employees with mandatory shift breaks or be subject to substantial fines of up to $300 per employee for a first offense. The Healthy Retail Employee Act (the "Act"), was signed into law by Governor Martin O'Malley on May 20, 2010. To continue reading about the new law and its implications for employers, see Littler's ASAP Maryland Enacts "The Healthy Retail Employee Act" and Amends Its Wage Payment and Collection Law by H. Tor Christensen and Steven E. Kaplan.

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For those of you following the Jaimez v. Daiohs USA, Inc. case, on May 12, the California Supreme Court denied defendant Daiohs' requests for review and depublication of the appellate court's decision. For those of you who have not been following the Jaimez case, read on. The decisions of both the California court of appeal and California Supreme Court are as significant as they are discouraging.

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While the most recent change to the Fair Labor Standards Act (FLSA) and the attention it may receive might seem small in comparison to Health Care Reform, the FLSA Amendment is significant. The Amendment, which now provides break time to nursing mothers, imposes a new requirement under the FLSA. For further analysis on the Amendment and its implications for employers, continue reading at Littler's D.C. Employment Law Update blog.

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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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