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I
Electronic World n Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781, 800
By Christopher A. Parlo and (2008), review granted and opinion superseded in 85 Cal. Rptr. 3d 688 (Oct.
Michael J. Puma 22, 2008), California’s Fourth District Court of Appeal substantively altered
the wage and hour landscape through its conclusion that California meal and
The Fair Labor Standards Act rest period regulations only impose a passive obligation on employers to make
(FLSA) requires employers to breaks available. This legal finding, according to the Brinker court, renders meal
pay their employees a minimum and rest period claims hopelessly uncertifiable as a class action, as the employ-
wage for all hours worked in a ee’s option to waive a meal or rest period requires a case-by-case inquiry into
workweek and to pay overtime the reason each individual break was not taken. While the Brinker decision is
to those nonexempt (i.e., hour- currently pending review by the California Supreme Court, Brinker’s analysis is
ly) employees in any workweek not the be-all end-all when it comes to class adjudication of meal and rest period
that exceeds 40 hours. All time claims. Regardless of the outcome in Brinker, numerous meal and rest break
from an employee’s first princi- theories will continue to be suitable for class adjudication.
pal activity of the day until the Claims Involving Uniform Barriers to Breaks
last principal activity, excluding Perhaps one of the most effective theories permitting class adjudication of
meal periods, is compensable. meal and rest period claims involves an employer’s imposition of a common pol-
History icy and/or practice that uniformly prevents employees from accessing meal and
When Congress passed the rest periods. Such violations predicated upon a common barrier are antithetical
FLSA in 1938, measuring (and of Brinker, as such violations involve: 1) a common policy ideal for classwide ad-
controlling) the length of an em- judication; 2) a lack of employee choice that effectively negates the “individual-
ployee’s workday was relatively ized” waiver defense; and 3) the potential for employer liability, notwithstanding
easy. An employee showed up to the existence of a facially lawful meal and/or rest period policy. See e.g., Bufil v.
work, punched a time-clock (or Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1206 (2008) (“no one dis-
signed a log sheet, or followed
putes that the wage order was posted or that there were designated areas to take
some similar method), recorded
a break — these matter naught if a single-shift sole employee or sole employee
his or her departure from the
working with a trainee is not able to take an off-duty break.”).
worksite in the same manner as
continued on page 2
used on arrival, and was paid
for the intervening time period,
excluding only the generally
preset lunch period. The routine
In This Issue
seemed simple enough. Brinker and Meal and
Since that time, however, Rest Breaks. . . . . . . . . 1
the confines of both the work- What Is a Compensable
day and the workplace have Workday?. . . . . . . . . . 1
changed. Under the FLSA, em- Guns in the
ployees are entitled to be paid Workplace. . . . . . . . . 3
beginning only with their first Movers & Shakers. . . . 8
“principal activity,” that is, the Verdicts . . . . . . . . . . . 8
first activity that the employee is
hired to perform, and to be paid
only through their last principal
continued on page 5
Brinker ing that “Cicairos should be read un-
an employer will necessarily violate Meal Break Exemption KEVIN C. McCORMICK . . . . . Whiteford, Taylor & Preston L.L.P.
Baltimore
the applicable Wage Orders by con- Claims that are predicated upon
NEIL McKITTRICK . . . . . . . . . Ogletree Deakins
structing impediments to taking “off- an improper use of the “on-duty” Boston
duty” meal periods. See, e.g., Perez v. exemption also provide another RALPH MORRIS . . . . . . . . . . . Schiff Hardin LLP
Chicago
Safety-Kleen Sys., 253 F.R.D. 508, 514 ground amenable to class adjudi- WAYNE N. OUTTEN . . . . . . . . Outten & Golden LLP
(N.D. Cal. 2008) (“The conclusion cation. An “on-duty” meal break — New York
that an employer may not discourage which is a codified exception to the PATRICIA ANDERSON
PRYOR . . . . . . . . . . . . . . . . . . Taft, Stettinius & Hollister LLP
meal breaks is also consistent with requirement that “off-duty” breaks Cincinnati, OH
three other recent cases in which be given — is an affirmative defense MARK N. REINHARZ . . . . . . . Bond, Shoeneck & King, PLLC
Garden City, NY
district courts have interpreted an that may be utilized only if three el-
ROSANNA SATTLER . . . . . . . . Posternak Blankstein & Lund LLP
employer’s obligation under Sec- ements are established by the em- Boston
tion 512.”); Brown, 2008 U.S. Dist. ployer. See, e.g., 8 CCR 11040(11)(A) JOHN D. SHYER . . . . . . . . . . . Latham & Watkins LLP
New York
LEXIS 17125, 17-18 (reasoning that (“[a]n ‘on duty’ meal period shall be SCOTT T. SILVERMAN . . . . . . Akerman Senterfitt
while an employer is not obligated permitted only when the nature of Tampa, FL
“to force employees to take breaks[,]” the work prevents an employee from WILLIAM J. WORTEL . . . . . . . Bryan Cave LLP
Chicago
an employer may be liable where “an being relieved of all duty and when
employer simply assumed breaks by written agreement between the Employment Law Strategist® (ISSN 1069-3741) is published
by Law Journal Newsletters, a division of ALM. © 2010 ALM Media,
were taken, despite its institution of parties an on-the-job paid meal pe- LLC. All rights reserved. No reproduction of any portion of this
issue is allowed without written permission
policies that prevented employees riod is agreed to. The written agree- from the publisher. Telephone: (877) 256-2472
from taking meal breaks.”); White ment shall state that the employee Editorial e-mail: wampolsk@alm.com
Circulation e-mail: customercare@alm.com
v. Starbucks Corp, 497 F. Supp. 2d may, in writing, revoke the agree- Reprints: www.almreprints.com
1080, 1089 (N.D. Cal. 2007) (reason- ment at any time.”); McFarland v. POSTMASTER: Send address changes to:
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continued on page 7 120 Broadway, New York, NY 10271
Compensable Workday At or after the end of the scheduled in the courts have met with limited
workday, an employee may need success. The important point, how-
continued from page 1 time to log off from a computer or ever, is that if an employee can per-
activity. However, those concepts do may choose to check e-mails. suade a court to call, for example,
not necessarily include everything an What Is ‘Work’? a particular morning task “integral”
employee might do to get ready for Recognizing these realities, em- and “indispensable,” that activity can
work at the beginning of the day, or ployees have sought clarification in become the first principal activity of
that they may do after the traditional the courts as to what it means to the day. For compensation purposes,
or scheduled workday has ended. “work” — arguing that beyond the the employee then is on the clock
Time can be spent turning on, boot- things their employers had hired — and is required to be paid — for
ing up, and opening certain computer them to perform from the beginning all of his or her work time from that
programs needed to perform an em- to the end of the workday, there moment forward. The same dynamic
ployee’s duties. Employees may have occurs from the end of the tradition-
were certain additional tasks they
to print out and read certain reports. al workday until the completion of
had to complete in order to per-
They may have to check in with se- any alleged last principal activity.
form these principal activities and
curity or go through other screening Thus, a meat cutter in a slaughter-
that they should be paid as well for
processes just to be able to get to a house was originally thought to be
the time spent doing them. Their ef-
work station to perform their jobs. entitled to payment only beginning
forts have led to a major expansion
with the time he or she reached the
of the concept of “work,” to encom-
Christopher A. Parlo is a partner in butcher table, poised to begin carv-
pass not only the principal activities ing the first side of beef, until courts
Morgan Lewis’s Labor and Employ- themselves, but also activities that
ment Practice. He represents and decided that the job could not be
are “integral” and “indispensable” to done with a dull knife. In a blink,
counsels management clients in a the principal activities.
broad spectrum of industries and in sharpening knives became the first
all aspects of labor and employment
When Does the Day Begin principal activity of the day and the
law. Michael J. Puma is a partner in And End? meat cutter was entitled to be paid
the firm’s Employment Practice. His To this day, however, the boundar- not only for the time spent with
practice includes the full spectrum of ies of this additional “work” remain the sharpening stone, but also for
labor and employment law matters. murky, and efforts to define them continued on page 6
February 2010 Employment Law Strategist ❖ www.ljnonline.com/alm?emp 5
Compensable Workday gue an entitlement for this time even
if his or her employer did not ask
direction of a supervisor), that they
must record and report all time spent
continued from page 5 that any extra outside work be done. performing off-site business activi-
all of the intervening time from the Remember, the compensable work- ties, and that they will be required to
grinding room to the refrigerator to day runs from the first principal ac- return their electronic devices when
tivity of the day to the last principal the work is complete.
the butcher table, including interim
activity. It does not start and stop to Second, employers should encour-
walking time where the butcher was
account for intervening downtime, age nonexempt employees to adopt
not performing duties precisely de-
such as commuting. practices that keep work at the
fined as “butchering,” but walking
Take, for another example, an workplace. Encourage employees to
from place to place.
employee who pulls out his or her go home and rest, not work. Estab-
Needless to say, this created a
BlackBerry first thing in the morn- lish limits for time that can be spent
problem for employers, but a reason-
ing to read and respond to e-mails. checking emails and voicemails dur-
ably containable one. Although con-
At first blush, this might sound like ing non-work hours. Consider refus-
siderable uncertainty existed (and
only a good thing for an employer, ing remote access to e-mail for non-
continues to exist today) over what
blessed to have such a diligent and exempt employees altogether. The
activities qualify as “integral” and
fastidious employee. But wait! That policy’s goal is to make sure that
“indispensable,” at least all of the ac-
employee may also be found to be only those nonexempt employees
tivities occurred in the workplace, so
performing an “integral” and “indis- who have to work off-site are given
employers could conceivably observe
pensable” part of his or her job by access to work-related technology
and monitor what their employees
checking messages, which effectively and that they use it no more than is
did and how long it took.
starts his or her day for compensa- necessary.
Technology Expands the tion purposes, long before he or she Third, employers need to monitor
Workday even reaches the office. The employer compliance with any company poli-
What happens, however, when the also now has an electronic record of cies limiting the use of remote work
workplace itself is no longer con- all the time that is spent, beginning devices. Consider requiring nonex-
tained within the four walls of an with the employer’s electronic record empt employees who use remote
office or plant? What happens to the of the BlackBerry login. So, this dili- devices to sign an annual acknowl-
compensable workday in what we’ll gence comes at a high price. edgement form signifying their un-
call the “BlackBerry Age”? For many Controlling Exposure derstanding of the policy. Employers
years now, employees have been Because changes in technology can also audit or sample e-mail and
permitted — and in some cases re- have made it easy for employees voicemail logins and other records
quired — to work without being to extend their workdays well be- of employee time spent using re-
physically present in their places of yond the hours indicated by the mote electronic devices and com-
employment. Technology has driven time clock at the plant or the of- pare these records to pay records to
this expansion of the workplace to fice — and thus more difficult for ensure that all compensable time is
include homes, cars, hotel rooms, employers to monitor and control being paid. Employers should also
airplanes — virtually any place that — employers now have to manage make sure that managers have a
is cell phone– laptop– or BlackBer- the use of technology carefully to firm grasp of all of the policies as
ry–accessible. This has been both a avoid potentially crushing exposure well. Require managers to confirm in
convenience and a productivity en- to overtime claims for hours worked writing that they have no knowledge
hancement for employers and em- outside of the traditional compens- of uncompensated off-site work per-
ployees. But these technological ad- able workday, and outside of the tra- formed by nonexempt employees,
vances have profound implications ditional workplace. There are steps train them not to encourage and not
for what constitutes the compens- an employer can take to control and to ignore such work, and discipline
able workday. limit this exposure. those managers who permit it.
Take, for example, an employee First, employers should establish Conclusion
who brings his or her laptop home, a policy to limit the distribution of Perhaps the most important thing
and there performs some extra work. technology. Remote work devices an employer can do to avoid expo-
That employee may be entitled to be (BlackBerrys, cell phones, laptops) sure to overtime claims is not to as-
paid not only for the few minutes could be issued only to exempt per- sume it can accept the benefits of
actually spent editing a document or sonnel, who are not entitled to over- work performed off-site, even if it
reading e-mails at night before he or time pay, and only as needed. If non-
was done without permission and/
she sits down to dinner or goes to exempt personnel need short-term
or in violation of company policy. If
bed, but also for all of the intervening access to company technology off-
a nonexempt employee works out
time from the minute the employee site, a company can require that they
of the office, pay him or her. Then
left the office until he or she reaches acknowledge, preferably in writing
enforce any rules against such work
home, turns on the computer there via an acknowledgement form, that
with disciplinary measures.
and finishes checking her document these tools may not be used outside
or e-mails. The employee could ar- scheduled work hours (except at the —❖—
6 Employment Law Strategist ❖ www.ljnonline.com/alm?emp February 2010
Brinker (A); McFarland, 538 F. Supp. 2d at hour of work. See Bibo, 2009 U.S.
1217, n.3. As an employer’s act of Dist. LEXIS 37597, at 27-35.
continued from page 2 obtaining (or failing to obtain) the Claims Based on Waiver
requisite written consent will gener- By Collective Bargaining
Guardsmark, LLC, 538 F. Supp. 2d
ally be a standardized practice com-
1209, 1217 n.3 (N.D. Cal., 2008). Agreement
mon among all employees, both of
Whether an employer has satisfied In addition to the forgoing, class-
these elements are susceptible to
each of these elements may gener- wide claims may also be predicated
class adjudication.
ally be adjudicated on a classwide upon a uniform waiver of meal and
Importantly, while the on-duty
basis. rest periods by way of a collective
exemption “applies only to meal
Under the first element of the bargaining agreement. Meal and
periods, not to rest breaks” (Bu-
defense, an employer is entitled to rest periods are not exempted un-
fil, 162 Cal. App. 4th at 1205), em-
offer an on-duty meal break to em- der Labor Code § 514, and as such,
ployers who seek to defend a meal
ployees only if “the nature of the cannot be subject to waiver by a
break action by such means may
work prevents an employee from collective bargaining agreement as
be unwittingly setting up an argu-
being relieved of all duty … .” See, a matter of law. See Zavala v. Scott
ment for class adjudication of rest
e.g., 8 CCR 11040(11)(A). “The test Brothers Dairy, Inc., 143 Cal. App.
of whether the nature of the work period claims under barrier theory.
4th 585, 593 (2006); Valles v. Ivy
prevents an employee from being Indeed, an employer who advocates
Hill Corp., 410 F.3d 1071, 1081-82
‘relieved of all duty’ is an objective that it was entitled to invoke the on-
(9th Cir., 2005) (holding that “any
one” [DLSE Enforcement Manual, at duty meal break exemption based
provision of the collective bargain-
§ 45.2.3.1], and is focused on the on the inherent nature of its work
ing agreement purporting to waive
employer’s business “overall.” See by necessity must make an admis-
the right to meal periods would be
West v. Circle K Stores, Inc., 2006 sion that common impediments
of no force or effect: The right in
U.S. Dist. LEXIS 42074, 14 (E.D. Cal., existed that precluded free access
question is plainly nonnegotiable.”);
2006) (rejecting an employer’s argu- to all breaks — including rest pe-
Tormey v. Vons Cos., Inc., 2007 U.S.
ment that “the nature of the work riods. An employer cannot have it
Dist. LEXIS 66010 (S.D. Cal. Sept. 5,
exception applies on a case-by-case, both ways. An employer that utilizes
2007). Based on such authority, an
shift-by-shift basis[,]” as “the excep- the on-duty meal break exemption
employer’s effort to secure a univer-
tion was more likely provided to al- to overcome inherent impediments
sal waiver by such means presents
low employers some relief when the will be liable if no action is taken to
a common issue ideal for class ad-
nature of the work in their business provide employees some means to
judication.
overall does not permit a mid-shift access off-duty rest periods. Under
most circumstances, the employer’s Claims Based on
meal break.”). As the nature of the
effort to avail itself of the “on-duty” Misclassification of
work element is one that applies to
all employees equally, courts have exemption all but ensures that rest Exempt Status
concluded that this issue is one break claims will be amenable to Finally, classwide claims may also
that may, and properly should, be class adjudication as well. be predicated upon a challenge of
adjudicated on a class-wide basis. Claims Based on Facially an employer’s policy of improperly
See, e.g., Bufil, 162 Cal. App. 4th at Unlawful Break Policies classifying employees as exempt.
1203-1204 (concluding that the is- Courts have also continued to As a general rule, meal and rest pe-
sue of whether an employer’s prac- certify classes based on meal and/ riod requirements do not apply to
tice of scheduling a single employee or rest period policies alleged to fa- exempt employees under the Wage
to work alone was sufficient to satis- cially violate meal and rest period Orders. See, e.g., 8 CCR 11040(1)(A)
fy the “nature of the work” element requirements set forth in the Wage (“Provisions of sections 3 through
was “a legal question concerning Orders. See, e.g., Bibo v. Fed. Express, 12 shall not apply to persons em-
the liability of Dollar to each puta- Inc., 2009 U.S. Dist. LEXIS 37597, 30 ployed in administrative, executive,
tive class member.”); West v. Circle (N.D. Cal., Apr. 21, 2009) (“Plaintiffs or professional capacities.”); Wiegele
K Stores, Inc., 2006 U.S. Dist. LEXIS have identified the relevant policies v. FedEx Ground Package Sys., 2008
42074, at 14. and the law with which they argue U.S. Dist. LEXIS 10246, 6 (S.D. Cal.
Under the second and third ele- the policies are inconsistent, and Feb. 12, 2008) ( holding that “[a]n
ments of the defense, an employer as such offer a common question employee classified as ‘exempt’ … is
may be held liable if it utilizes the of law and fact that predominates not covered by California's overtime
on-duty exemption without first se- over individual inquiries.”). In Bibo, and meal and rest period laws” and
curing a written agreement from em- the court certified meal period sub- “[i]f a classification is challenged, the
ployees, or if the written agreement classes based on policies which vio- employer must demonstrate that its
fails to state expressly that the em- lated provisions requiring that: 1) a ‘exempt’ classification is proper.”).
ployee may revoke the agreement at meal period be uninterrupted; and Thus, where an employer maintains
any time. See e.g., 8 CCR 11040(11) 2) breaks be provided after the fifth continued on page 8
February 2010 Employment Law Strategist ❖ www.ljnonline.com/alm?emp 7
Hodges has joined its Seattle office.
M o v e r s & S h a k e r s Hodges is an associate in the Em-
ployee Benefits group and practices
Weil, Gotshal & Manges an- Potter Anderson & Corroon LLP in the area of executive compensa-
nounced that Allan Dinkoff, former- announced that 14 of its attorneys tion and employee benefits. He has
ly a Managing Director and Head of were named 2009 Delaware Super broad experience with tax qualifica-
the Employment Law Group at Mer- Lawyers. The Delaware Super Law- tion, reporting, disclosure, fiduciary
rill Lynch & Co., Inc., has joined the yers listing reflects the top 5% of the and compliance issues for all types
firm’s Employment Litigation Prac- attorneys statewide based on nomi- of employee benefit plans.
tice as counsel in the New York of- nations by peers and independent
fice. Mr. Dinkoff has nearly 30 years research by the publishers of Law & Hinshaw & Culbertson LLP an-
of experience handling employment Politics magazine. Kathleen Furey nounced that the Governors of the
matters and complex commercial liti- McDonough was listed in the area College of Labor and Employment
of Employment & Labor. Lawyers have elected Capital Partner
gation.
Thomas Mandler as a new Fellow
William K. Kennedy II has been of the College. Fellows are named
Ronald Stadler has joined Smith-
made a partner in Ballard Spahr’s for their sustained outstanding per-
Amundsen LLC in the firm’s Mil- Philadelphia office. He is a member
waukee, WI, office as a partner in formance in the profession, exem-
of the Litigation Department and the plifying integrity, dedication and ex-
the Labor & Employment practice Labor, Employment & Immigration
group. Mr. Stadler has over 20 years cellence, according to the College.
Group. He represents management and They are dedicated to the study and
of experience as a trial attorney and government entities in employment- enhancement of professional ethics
adviser to his clients in the areas of related litigation, labor arbitrations, in the practice of labor and employ-
labor and employment law, school collective bargaining negotiations, and ment law and to the improvement
law, commercial litigation, and mu- unfair labor practice disputes. of the delivery and quality of labor
nicipal law. He regularly advises pri-
and employment legal services.
vate and public sector employers on Stoel Rives LLP, a business law
—❖—
labor and employment matters. firm, announced that Jeffry A.
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