Effective 4/12/12, the DLSE updated its templates and FAQs to help employers comply with the Wage Theft Prevention Act. You can find the page of forms here. I guess they couldn't wait until the Brinker hoopla died down a little?
There are clarifications such as related to who is responsible for the notice when an employer hires a temp from a staffing agency (the agency), etc. Fortunately, the DLSE also says that employers don't have to distribute new notices every time the DLSE issues an update. Whew!
DGV
Friday, 13 April 2012
District Court Kills the NLRB Poster?
Our friends at the California Chamber of Commerce just let me know that the U.S. District Court for the District of South Carolina held in Chamber of Commerce v. NLRB (opinion here) that the NLRB did not have authority to require employers to post a poster informing employees of their rights under the National Labor Relations Act. (Poster information here and here.) A district court previously held the NLRB did have the authority to require the poster, but did not have the power to create a new "unfair labor practice" when employers do not comply. See National Ass’n of Manufacturers v. NLRB, No. 11-1629, 2012 WL 691535 (D.D.C. Mar. 2, 2012) (opinion here).
So, this is going to shake out in the Courts of Appeals or the U.S. Supreme Court. Perhaps the Board will "delay" the implementation date again. Stay tuned.
So, this is going to shake out in the Courts of Appeals or the U.S. Supreme Court. Perhaps the Board will "delay" the implementation date again. Stay tuned.
Random Post-Brinker Thoughts
I have taken more time to read Brinker. Here are some thoughts to add on to yesterday's post.
1. The Supreme Court tried to clarify when class actions should be certified. The trial court will have a lot of latitude to decide certification, as it has been since 2004's Sav-on decision. But this opinion will give trial courts more encouragement to certify class actions. The Court limited the trial court's examinations of whether a case has legal merit at the class action stage to resolving a legal issue that affects common issues so much that class certification would be improper. The trial courts will still wrestle with this issue and class action practice is likely safe under this analysis. As explained below, the Court's application of class action rules means that class actions based on common policies (such as rest periods) may be authorized more freely than courts have been allowing up to now.
1.5 The summary judgment motion will be a very important part of class action defense and should be considered early in the process to avoid class certification of claims that are based on a common policy, but have no merit.
2. Rest period law: The Court precisely explained to employers the rest period rules. Policies must be drafted in accordance with this formula: "the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes."
You don't like math? Well they explain it even better here, because they incorporate the fact that employees with shifts of fewer than 3.5 hours in length are not entitled to any rest period: "Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.... an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on."
Caveat re scheduling: although the court added up the rest-period minutes above, the law requires paid, 10-minute rest periods during each four hour work period. So, the employer should draft its policies such that the rest periods fall somewhere in the middle of each four-hour work period. Here is the rule regarding timing:
As you can see, this policy permits the argument that employees who worked 6.5 hours were not given a second rest period, even under the policy. So, the Court's holding re class certification re-opens the door for rest period class actions. Therefore, employers must have a more detailed rest-period policy that spells out rest periods are authorized and permitted in accordance with the formula above, or a class action lawyer can argue that the vague, common policy is applied contrary to law. Additionally, management must be educated to enforce rest period policies in accordance with their terms when they schedule. Make with the drafting!
4. Meal periods. I pulled the quotes in my post yesterday. Here are some more thoughts.
- Meal period policies should emphasize they are "duty free," meaning the employee can come and go and leave the premises as desired.
- Employers will be liable for regular straight time or overtime pay when the know or should have known that employees work through meal periods. That's normal, because you have to pay employees when you "suffer or permit" them to work. So, if employees don't punch out for meals, you cannot "auto-deduct" meal period time. As we have said before, the remedy for employees who do not comply with policies is discipline, not docking pay.
- Managers who prevent employees from taking meal periods per policy (such as discouraging meal periods) may expose the company to liability for meal period premiums. When there is a "corporate culture" of discouraging the meal period, look for class actions based on a "common de facto policy."
- The legally compliant policy must provide that a meal period must start before the sixth hour of work begins. That means, an employee who starts at 9 must be given a meal break by 2 pm. Again, employers do not have to police the requirement, but the policy should be explicit to avoid the argument that the policy allows for illegal lunches.
- The legally compliant policy also should provide for a second meal period that starts before the eleventh hour of work begins. There is a waiver of the second meal period allowed upon certain conditions, and that can be included as well.
- Caveat: Know your business's wage order! I am going over the general rules here (Wage Order 4, 5, 7 - the biggies). There are different meal period provisions in some of the lesser used wage orders, such as Wage Order 12, applicable in the film industry. That Wage Order requires meals at six-hour intervals, not before the sixth hour and before the eleventh hour.
5. Off the clock. The Supreme Court decided that no "off the clock" work class would be allowed because (1) Brinker had an express and specific policy prohibiting off the clock work and (2) the only evidence in support of class certification was anecdotes about specific instances. The Court noted the absence of a "de facto" policy requiring workers to work off the clock. So, it pays to have a policy barring off the clock work. We also like sign offs on time cards / time sheets certifying that employees reported all time worked, and verifying they know not to work off the clock.
Well, that's it for now. I'm sure we'll have more down the road. I hope this has been helpful.
Greg
1. The Supreme Court tried to clarify when class actions should be certified. The trial court will have a lot of latitude to decide certification, as it has been since 2004's Sav-on decision. But this opinion will give trial courts more encouragement to certify class actions. The Court limited the trial court's examinations of whether a case has legal merit at the class action stage to resolving a legal issue that affects common issues so much that class certification would be improper. The trial courts will still wrestle with this issue and class action practice is likely safe under this analysis. As explained below, the Court's application of class action rules means that class actions based on common policies (such as rest periods) may be authorized more freely than courts have been allowing up to now.
1.5 The summary judgment motion will be a very important part of class action defense and should be considered early in the process to avoid class certification of claims that are based on a common policy, but have no merit.
2. Rest period law: The Court precisely explained to employers the rest period rules. Policies must be drafted in accordance with this formula: "the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes."
You don't like math? Well they explain it even better here, because they incorporate the fact that employees with shifts of fewer than 3.5 hours in length are not entitled to any rest period: "Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.... an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on."
Caveat re scheduling: although the court added up the rest-period minutes above, the law requires paid, 10-minute rest periods during each four hour work period. So, the employer should draft its policies such that the rest periods fall somewhere in the middle of each four-hour work period. Here is the rule regarding timing:
Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. ....
in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.)3. The Court then held that the trial court properly certified a rest-period class because Brinker's rest-period policy was uniformly applied and was vague enough to permit the argument that it violated the law because it did not specifically authorize rest periods when employees work "major fractions" of four-hour periods. Here is the policy:
Under the written policy, employees receive one 10-minute rest break per four hours worked: “If I work over 3.5 hours during my shift, I understand that I am eligible for one ten minute rest break for each four hours that I work.”
As you can see, this policy permits the argument that employees who worked 6.5 hours were not given a second rest period, even under the policy. So, the Court's holding re class certification re-opens the door for rest period class actions. Therefore, employers must have a more detailed rest-period policy that spells out rest periods are authorized and permitted in accordance with the formula above, or a class action lawyer can argue that the vague, common policy is applied contrary to law. Additionally, management must be educated to enforce rest period policies in accordance with their terms when they schedule. Make with the drafting!
4. Meal periods. I pulled the quotes in my post yesterday. Here are some more thoughts.
- Meal period policies should emphasize they are "duty free," meaning the employee can come and go and leave the premises as desired.
the wage order’s meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.Under the class action rule the Court developed, a vague policy is subject to an argument that the common policy violates the law. So, policies should be explicit.
- Employers will be liable for regular straight time or overtime pay when the know or should have known that employees work through meal periods. That's normal, because you have to pay employees when you "suffer or permit" them to work. So, if employees don't punch out for meals, you cannot "auto-deduct" meal period time. As we have said before, the remedy for employees who do not comply with policies is discipline, not docking pay.
- Managers who prevent employees from taking meal periods per policy (such as discouraging meal periods) may expose the company to liability for meal period premiums. When there is a "corporate culture" of discouraging the meal period, look for class actions based on a "common de facto policy."
- The legally compliant policy must provide that a meal period must start before the sixth hour of work begins. That means, an employee who starts at 9 must be given a meal break by 2 pm. Again, employers do not have to police the requirement, but the policy should be explicit to avoid the argument that the policy allows for illegal lunches.
- The legally compliant policy also should provide for a second meal period that starts before the eleventh hour of work begins. There is a waiver of the second meal period allowed upon certain conditions, and that can be included as well.
- Caveat: Know your business's wage order! I am going over the general rules here (Wage Order 4, 5, 7 - the biggies). There are different meal period provisions in some of the lesser used wage orders, such as Wage Order 12, applicable in the film industry. That Wage Order requires meals at six-hour intervals, not before the sixth hour and before the eleventh hour.
5. Off the clock. The Supreme Court decided that no "off the clock" work class would be allowed because (1) Brinker had an express and specific policy prohibiting off the clock work and (2) the only evidence in support of class certification was anecdotes about specific instances. The Court noted the absence of a "de facto" policy requiring workers to work off the clock. So, it pays to have a policy barring off the clock work. We also like sign offs on time cards / time sheets certifying that employees reported all time worked, and verifying they know not to work off the clock.
Well, that's it for now. I'm sure we'll have more down the road. I hope this has been helpful.
Greg
Thursday, 12 April 2012
Brinker: Employers Need Not Force Meal Periods
I will digest the Court's unanimous Brinker opinion a bit later. Those of you waiting to read it, it is here.
There is a long discussion of class certification in wage hour cases, which I will analyze later. But
here are the money quotes on rest periods / meal periods. At first read, this is total victory for the employer's position:
Rest periods:
Meal Periods:
And finally - no "rolling 5 hour" meal periods.
There is a long discussion of class certification in wage hour cases, which I will analyze later. But
here are the money quotes on rest periods / meal periods. At first read, this is total victory for the employer's position:
Rest periods:
Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.* * *
Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention.
* * *
in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.) Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.
Meal Periods:
Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. . . . We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute.
* * *
If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.”
Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.
* * *
To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.
On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).
And finally - no "rolling 5 hour" meal periods.
We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work. We conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5 does not impose additional timing requirements.
Wednesday, 11 April 2012
Brinker Meal Period Opinion To Be Released Thursday 4/12
I think we're finally going to find out what the law is on meal periods in California. But I have no idea if employers are going to like it or not.
Here's the Supreme Court's announcement.
BRINKER RESTAURANT v. S.C. (HOHNBAUM)
Case: S166350, Supreme Court of California
Event Description: Notice of forthcoming opinion posted
To be filed on Thursday, April 12, 2012 at 10 a.m.
Our announcement is that Shaw Valenza will be conducting a webinar on Brinker on April 25. Find out about it here.
Here's the Supreme Court's announcement.
BRINKER RESTAURANT v. S.C. (HOHNBAUM)
Case: S166350, Supreme Court of California
Event Description: Notice of forthcoming opinion posted
To be filed on Thursday, April 12, 2012 at 10 a.m.
Our announcement is that Shaw Valenza will be conducting a webinar on Brinker on April 25. Find out about it here.
Sunday, 1 April 2012
True Prep
Lovelies,
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| Betsey Johnson Sunglasses. |
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| Polo and White Jeans, both Ralph Lauren. |
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| Tiffany Key. |
I'm finally BACK!
It's been a wild two months, and I'm so sorry I haven't posted in a while. Between school, volunteering and orchestra, I have barely had time to sleep.... definitely noticeable due to the bags under my eyes. ;) Although I took a brief leave from blogging, some amazing opportunities arose! I was featured in my school's newspaper, The HUB. You can read the article here. ( click on expand, I'm on Page 5)
These past few weekends, I've avoided doing my homework by throwing lots of spring outfits together, but never posted photos of them (this is one of the outfits). I picked up both the polo and white pants at Ralph Lauren last time I went shopping. I absolutely adore the combination of the two pieces together.... Although I look like I'm headed to a polo match, I still feel super sophisticated! The Tiffany Key was a 16th birthday present from my parents. I had a chance to pick out which key I wanted, and this was, by far, my favorite design.
By the way, even if the über-preppy lifestyle isn't your forte, True Prep by Lisa Birnbach is definitely a fun read. (:
XOXO,
Em
Wednesday, 21 March 2012
U.S. Supreme Court Holds No Self-Care FMLA Claims Against State
I know it's been a while. I'm on strike waiting for Brinker. In the meantime, though, the U.S. Supreme Court held that the Family and Medical Leave Act's "self-care" provision is not applicable to the states (and their agencies) in federal courts because of the Eleventh Amendment to the Constitution.
While interesting to constitutional law scholars and state governments, the Court's decision in Coleman v. Court of Appeals of Maryland (opinion here) does not affect FMLA claims against private employers at all. It also does not disturb the Court's prior decision in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), in which the Court held that FMLA claims based on leave to care for family members or baby bonding are authorized against the states.
The difference between this case and Hibbs is that the Fourteenth Amendment to the U.S. Constitution permits Congress to implement its guarantee of due process and equal protection via "appropriate legislation." In Hibbs, the Court decided that baby-bonding and family care leave are "appropriate" because Congress was concerned with sex discrimination, and that there was evidence that states were engaging in sex discrimination against parents and women caring for family members. The "self-care" provision, though, is applicable to both sexes and is intended to remedy the costs of losing a job when one is ill. That subject is not appropriate for legislation under the Fourteenth Amendment. As the plurality opinion put it:
There, you're all constitutional lawyers now. The decision was fractured, with only 4 justices signing the lead opinion (Kennedy, Thomas, Roberts and Alito). Four justices dissented, joining an opinion written by Justice Ginsburg (Kagan, Sotomayor, and Breyer). Justice Scalia did not join the opinion, but agreed that the FMLA's self-care section does not apply to the states. Justice Scalia's concern is that the analysis the Court uses to decide if the Eleventh Amendment bars a lawsuit against a state is mushy and should be revised.
While interesting to constitutional law scholars and state governments, the Court's decision in Coleman v. Court of Appeals of Maryland (opinion here) does not affect FMLA claims against private employers at all. It also does not disturb the Court's prior decision in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), in which the Court held that FMLA claims based on leave to care for family members or baby bonding are authorized against the states.
The difference between this case and Hibbs is that the Fourteenth Amendment to the U.S. Constitution permits Congress to implement its guarantee of due process and equal protection via "appropriate legislation." In Hibbs, the Court decided that baby-bonding and family care leave are "appropriate" because Congress was concerned with sex discrimination, and that there was evidence that states were engaging in sex discrimination against parents and women caring for family members. The "self-care" provision, though, is applicable to both sexes and is intended to remedy the costs of losing a job when one is ill. That subject is not appropriate for legislation under the Fourteenth Amendment. As the plurality opinion put it:
what the family-care provisions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.
There, you're all constitutional lawyers now. The decision was fractured, with only 4 justices signing the lead opinion (Kennedy, Thomas, Roberts and Alito). Four justices dissented, joining an opinion written by Justice Ginsburg (Kagan, Sotomayor, and Breyer). Justice Scalia did not join the opinion, but agreed that the FMLA's self-care section does not apply to the states. Justice Scalia's concern is that the analysis the Court uses to decide if the Eleventh Amendment bars a lawsuit against a state is mushy and should be revised.
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