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CA Supreme Court Holds Prevailing Party is Not Entitled to Attorney’s Fees in Meal And Rest Period Cases

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Published on Tuesday, 08 May 2012 16:08

On April 30, 2012, the California Supreme Court issued a published decision addressing whether the prevailing party in meal and rest period cases may recover attorney’s fees. Specifically, the Court considered when, if ever, a prevailing party in a section 226.7 action for an alleged failure to provide meal and rest breaks may be awarded attorney's fees. The Count concluded that the labor code does not authorize an award of attorney's fees to a party that prevails on a section 226.7 claim.  

In reaching its decision, the Court noted that “the legislative history shows that the Legislature (a) considered including a one-way fee-shifting provision in favor of employees in section 226.7, (b) ultimately deleted the provision from the final version of section 226.7, and then (c) gave no indication that section 218.5's two-way fee-shifting rule should apply to section 226.7 claims, even as (d) it adopted amendments to section 218.5 as part of the very same legislation that created section 226.7. We believe the most plausible inference to be drawn from this history is that the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney's fees.” Read More.

Employee Terminated for Working Through Lunch Wins U.I. Appeal

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Published on Tuesday, 24 January 2012 05:19

Sharon Smiley worked for 10 years as a receptionist and administrative assistant at a Chicago real estate company. However, she was terminated for working through her lunch, in violation of company policy. Specifically, Smiley alleged that she punched out of work for lunch but remained at her desk to finish a project assigned by a manager because she did not plan to eat that day. Another manager advised Smiley that it was time for her to take her meal break and step away from her desk, but apparently she refused. The manager observed Smiley performing her job duties including working on a spreadsheet on her computer, answering the phone and responding to questions by people who approached her desk. The company's human resources director became involved, explaining that hourly non-exempt employees were required to take a 30-minute meal break, a policy that had been in the company handbook for 10 years. Further, the HR director advised that not following the policy would be a violation of Illinois' labor laws. Smiley was terminated and subsequently Smiley filed for unemployment insurance (U.I.) benefits, which were denied due to her “misconduct.” According to the employer, Smiley had been warned several times about working during her meal period. After a two-year battle, an Illinois appeals court has found that denial of her unemployment benefits was "clearly erroneous." Similar to California, Illinois requires employers to provide employees a lunch break. But, according to one legal expert, Michael LeRoy, law professor at the University of Illinois at Urbana-Champaign, the law does not mean that an employer may fire a worker who refuses to take a break in order to finish his or her work. This puts employers in the difficult position of risking a violation of wage and hour laws by not disciplining employees for failing to take their meal periods as required by law and workplace policies versus imposing disciplinary measures for failure to follow company policy, such as termination, which could be interpreted by a court as inappropriate under the circumstances. Read More.

California Supreme Court Schedules Oral Argument in Brinker

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Published on Wednesday, 05 October 2011 04:36

The long awaited decision in Brinker Restaurant  v. S.C. (Hornbaum) Case: S166350,  regarding meal and rest periods, draws closer as the California Supreme Court placed the Brinker case on calendar to be argued on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco. The Brinker case involves, among other issues, the significant question of whether an employer must ensure that its employees take their requisite meal and rest breaks or whether the employer must simply make them vailable.  This is an important decision for employers as it means the difference between employers becoming “clock watchers” because they have to micromanage employees to ensure that they take their mandated meal and rest periods, as opposed to only requiring that employers provide the meal and rest periods and relying upon employees to exercise diligence and take their meal and rest breaks as required by law. More information will be provided following oral arguments. Read More.

HR Practice Pointer: Split-Shift Pay

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Published on Tuesday, 19 July 2011 09:12

A "shift" refers to designated hours of work by an employee with a specific beginning and ending time. A "split-shift" refers to a work schedule which is interrupted by non-working periods established by the employer other than bona fide meal and rest periods. For example, an employee who is scheduled to work 8 to noon and 3 to 7, is working a split shift. If there is more than one hour between the shifts, the employee is entitled to at least one hour's pay at no less than the minimum wage. If the employee earns more than the minimum wage, then any amount above minimum wage can be used to offset the split shift pay. Further, as confirmed by a recent California appellate court decision, employees who are working consecutive overnight shifts that are not interrupted by unpaid, nonworking periods are not working a split shift, as defined in the Industrial
Wage Commission's Wage Order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040). In that case, security guards worked night shifts that began one calendar day and ended the next, sometimes in excess of eight hours. They filed a class action against their employer, Securitas, alleging that the company failed to pay mandatory split-shift pay. However, Securitas argued that an uninterrupted work shit that continues through midnight and thus falls in two calendar days and two workdays is not a split shift. On appeal, the court agreed emphasizing that "the fact that a single continuous shift happens to begin during one 'workday' and end in another does not result in a 'split shift.'" Read More.