Meal and Rest Period Update

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• Meal and Rest Period Update
• Presented by
• Laura E. Innes, Esq.

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The Labor Code

• Labor Code (L.C.) 226.7 requires employers to
  provide meal periods in accordance with the IWC
  Orders
• Meal periods are also covered in L.C. 512

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Meal Period Basics

• Employees who work more than 5 hours are entitled
  to a meal period of at least 30 minutes
• Waiver by mutual consent if employee does not
  work more than 6 hours
• Employee must be relieved of all duties
• On duty meal periods -- Nature of the work
  exception
• Second meal period if employee works more than 10
  hours (but can be waived if day
• One premium hour of pay at the employees regular
  rate for a missed meal period

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Rest Period Basics

• Employers must authorize and permit a rest period
  for each 4 hours worked or major fraction thereof
• Net 10 minutes
• To be taken in, approximately, the middle of each
  work period
• One premium hour of pay at the employees regular
  rate for failure of an employer to provide a rest
  period.

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California Food FightThe Great Enforcement Debate
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Murphy v. Kenneth Cole Productions

• Store manager filed a wage claim with the
  California Labor Commissioner asserting claims
  for unpaid overtime and waiting penalties. The
  issue before the California Supreme Court was
  whether payments under Labor Code 226.7(awarding
  one hour of pay for each day a meal or rest
  period is not provided) is a wage or a penalty.
  If a penalty then a one-year statute of
  limitation applied. If a wage then a
  three-year statute of limitations applied.
• In April 2007, the California Supreme Court held
  that payments under Labor Code 226.7 constitute
  wages subject to a three-year status of
  limitation.

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Cicairos v. Summit Logistics

• Provide means the employer has an affirmative
  obligation to ensure employees take the meal
  period
• It is not sufficient for an employer to merely
  inform employees they can take a meal period
• Authorize and permit means an employer must do
  more than merely inform employees about the
  ability to take a rest break
• The employer cannot discourage employees

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Enforcement Questions Post Kenneth Cole

• Definition of provide
• Definition of authorize and permit
• Number of Penalties which can be assessed per day
  for missed meal and rest periods
• When missed meal and/or rest period
• premium pay must be paid

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Enforcement Questions Post Kenneth Cole

• Whether meal and/or rest period premium pay must
  be included in the calculation of the regular
  rate
• How employers should record payment on employee
  check stubs
• Timing of second meal periods (rolling 5 hour
  meal periods required?)

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Enforcement Questions Post Kenneth Cole

• De minimus violations (Meal periods close to 30
  minutes? Meal periods started a few minutes
  late?)
• Do rounding rules apply to meal periods?
• Rest periods (the net ten minute requirement)
• Is there now a 4 year statute of limitations
  under the Business and Professions Code for
  missed meal and rest period?

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Enforcement Questions Post Kenneth Cole

• Can employers require employees to work on duty
  meal periods with the only remedy being the
  extra hour of pay?
• Future actions (legislative? administrative?
• case law?)

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Steven White v. Starbucks

• Alleged failure to provide meal and rest periods.
• Federal court ruled for employer where
• Employer offered/provided breaks/meals had a
  policy and work rule and no impediments to taking
  the breaks.
• Employee voluntary chose to forego breaks/meals.

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Brinker Restaurant Corp. v. Sup. Crt (Chilis)

• 2 issues
• Timing of meals every 5 hours?
• Does provide mean enforce?
• Trial Court found meal periods required every 5
  hours timing issue and impliedly held
  employers must enforce meal break.
• Appellate Court issued a writ no rolling 5 hour
  meal period required and trial court must rule
  on whether provide means enforce

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Brinker Restaurant Corp. (cont.)

• Clerk of the Court of Appeal requested that the
  California Supreme Court grant review and
  transfer the case back to the Court of Appeal.
• California Supreme Court granted review on its
  own motion and transferred the case back to the
  appellate court with directions to vacate its
  opinion and reconsider the matter as it sees fit.
  
• Court of Appeal gets a do-over

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Mahrt v. Home Depot USA, Inc.

• Deputy Labor Commissioner denied claims for meal
  and rest period penalties, finding that the
  plaintiff failed to meet the burden of proof
  because "evidence showed that Plaintiff was
  authorized and permitted to take the appropriate
  meal and rest periods."

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Mersnick v. USProtect Corp.

• Plaintiff is assigned to work at Vandenberg Air
  Force Base
• Vandenberg is a federal enclave.
• Plaintiff alleges failure to comply with
  California meal, rest period laws
• Federal Enclave Doctrine barred California
  wage-law claims.

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Jennifer Augustus v. American Commercial Security
Services

• Class action currently pending in the Los Angeles
  Superior Court on behalf of a class of
  approximately 2,900 to 3,500 security guards who
  were allegedly not provided meal and rest breaks.
  
• Trial court sustained defendant's demurrer as
  defective because it sought "penalties" beyond
  the one year statute of limitations.
• Plaintiff Augustus amended the Complaint to limit
  the prayer for recovery to a one year period.

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What to do?

• Appoint compliance manager
• Schedule relief
• Have a compliant written waiver on file
• Program automated scheduling systems to trigger
  violations and show premium pay requirements
• Establish system for employees to report
  violations
• Educate managers

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Training Pay or Not?
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Non-Compensable Training Time

• State mandated training curriculum (8 hours
  powers to arrest)
• Provided for the participants own advantage
• Provided at no cost to the prospective security
  guard
• Prior to any offer of employment
• Security guard training and registration
  independent from employment with a PPO
• No employment relationship

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Compensable Training Time

• Registered guard is hired and allowed to work
  after only 8 hours of powers to arrest training
  and
• 32 hours balance of training allowed to be
  completed within 6 months while now employed by
  the PPO compensable
• Training includes site specific protocols
  compensable

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• Simpson, Garrity Innes, PC
• 601 Gateway Boulevard, Suite 950
• South San Francisco, CA 94080
• http//www.sgilaw.com
• [phone]
• Laura E. Innes, Esq. linnes_at_sgilaw.com