California Court of Appeal Provides Some Hope to Employers Battling Meal and Rest Break Claims
In a well-drafted, yet currently unpublished decision, the California Court of Appeal for the Fourth Appellate District (San Diego County) issued an order that, if published or followed in published decisions, will ease the tremendous burden currently placed on California employers related to meal and rest break claims. In Brinker Restaurant Corporation v. Superior Court of San Diego County (October 12, 2007), the appellate court reversed the trial court’s order certifying a class action, based on the trial court’s erroneous interpretation of the law.
Brinker operates 137 restaurants within California. The purported class was made up of current and former hourly employees of Brinker’s restaurants. These employees asserted several claims, including claims for violation of California’s rest and meal break laws, as well as other wage and hour violations. Specifically, the employees claimed that Brinker violated California law by not specifically scheduling rest breaks in the middle of each work period. Further, the employees asserted that Brinker violated California’s meal period law by allowing “early lunches” and by not “ensuring” that employees take their meal break. Further, the employees claimed that they were forced to “work off the clock” and that Brinker engaged in a practice of “shaving time” from the payroll records to reflect less than a five-hour shift. The trial court ordered the classes certified.
Concluding that the trial court’s order was based upon erroneous assumptions, the Court of Appeal vacated the order certifying the class. The Court of Appeal held that without the trial court’s erroneous assumptions, many of the claims were not susceptible to class treatment because they were based on an individualized assessment of the facts.
In analyzing the rest period claim, the Court relied upon the language of the IWC Wage Order 5-2001 to conclude that “(1) employees need be afforded only one 10-minute rest break every four hours ‘or major fraction thereof’ . . .(2) rest breaks need be afforded in the middle of that four-hour period only when ‘practicable,’ and (3) employers are not required to ensure that employees take the rest breaks properly provided to them . . . .” The Court further explained that, had the trial court reached those conclusions, there would be a determination that only individualized claims exist and, thus, class certification would be improper.
In analyzing the meal period claim, the Court addressed two separate issues. One argument presented by the employees related to Brinker’s “early lunching” policy, under which Brinker allegedly required its hourly employees to take their meal periods within the first hour of their shift, and then the employees would be required to work in excess of five hours, potentially up to ten hours, without an additional meal period. The employees argued that this violated the labor code, which the employees interpreted as requiring an employer to provide a meal break for every five hours of work. Applying what it called “common sense,” the Court reasoned that an employer must provide a 30-minute meal break to employees who are permitted to work more than five hours per day, but need not provide a meal break for every five hours of work.
The second issue relating to meal periods addressed whether an employer is required to ensure that employees take their meal periods. The Court did not rule on this issue because the trial court had failed to decide it. However, the Court identified the issue and noted that under the language of Labor Code Section 512, the question is whether employers are required to ensure that employees take meal breaks, or, rather, whether employers must simply make the meal break available. In instructing the trial court regarding how it believed the trial court should address the issue on remand, the Court cited to the dictionary definition of the term “provide,” meaning, “to make available.”
Further, the Court cited to the recent federal court decision in White v. Starbucks, 497 F.Supp.2d 1080 (N.D. Cal. July 2, 2007), in which the court concluded that “the California Supreme Court . . .would require only that an employer offer meal breaks, without forcing employers actively to ensure that workers are taking these breaks,” and it stated that “the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason.”
With regard to the “off the clock” and “time shaving” issue, the Court simply noted that the trial court needed to conduct a more detailed inquiry as to whether the elements of those claims were met before determining that they were appropriate for class certification.
Employers’ Bottom Line:
Employers should remain cautious, but optimistic, in light of this ruling. It is not a published decision, so other courts are not required to rely upon it, nor can it even be cited to courts rendering decisions on these issues. However, efforts are being made to request publication of the decision. In any event, this decision is good news in that it may reflect how other courts, when faced with similar issues, would rule.
California wage and hour law is constantly changing and being reinterpreted. That is why it is vital that all employers with operations in California have their wage and hour policies and practices audited by California counsel experienced in the area of wage and hour law. Should you have any questions about this article or any other area of California employment law, please contact the author of this article, Helene Wasserman, at hwasserman@fordharrison.com or (213) 237-2403.
California Department of Fair Employment and Housing Approves Sexual Harassment Training Regulations
It took more than a year, but regulations have finally been approved to give employers guidance regarding their obligations to provide sexual harassment training pursuant to California Government Code Section 12950.1 (“AB 1825”).
As we previously reported in our November 2004 California Management Law Update, as of January 1, 2006, all employers with 50 or more employees are required to conduct mandatory sexual harassment training of all supervisors. The training must be at least two hours in length and must cover certain specific topics. Each supervisor must be trained at least every two years, and a newly hired or newly promoted supervisor must be trained within six months of assuming supervisory roles.
While the statute provided some information, there were substantial gaps in the legislation, which required significant interpretation and “tea leaf” reading until the regulations were finalized. Many of those questions have now been answered.
Who is a Covered Employer?
The regulations define covered employer as one having 50 or more employees. To determine whether an employer has 50 or more employees, you need to count all full-time and part-time employees, as well as contractors. Additionally, if an employer has had 50 or more employees in 20 or more consecutive weeks in the current or prior year, that employer is required to provide the training. Significantly, not all of the employees must be located in California. So, if an employer has 10 employees in California and 40 employees in other states, that employer must comply with the requirements of the statute and regulations.
Who is a Supervisor?
Another term that has now been defined is the term “supervisor.” A supervisor, for purposes of this statute, is anyone who has the ability to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or direct them, or adjust grievances or effectively recommend that action. A “supervisor” is one who utilizes independent judgment. Significantly, employers are only required to train supervisors located in California. Although language was proposed that would have required training anyone who supervised employees in California, even if the supervisor was not located in California, that language was ultimately rejected.
What Types of Training are Permitted?
Much was discussed about what form the training must take and who is qualified to conduct the training. The regulations approve live training, e-training, and webinars/webcasts, but dictate certain requirements for each. All of the forms of training must include questions that assess learning, skill-building activities assessing understanding, and numerous hypothetical scenarios with questions.
Live Training: Of course live training, by a trainer as defined below, is always permitted, provided it meets the other requirements set forth.
E-Learning: The regulations expressly permit “e-learning.” If an employer elects to use an “e-learning” program, the program must be developed and approved by trainers and instructional designers. Additionally, there must be an opportunity for the supervisor to seek guidance and ask questions of a trainer, and employers must ensure that the trainer responds to the questions no more than two business days after the question is asked.
Webinars/Webcasts: Another approved method of training consists of webinars or webcasts. If an employer elects to use this type of training, it must ensure that the supervisor takes the entire program, and there must be documentation of active participation during the program, such as interactive content, questions, hypothetical scenarios, etc.
Other Programs: The regulations also provide for other “effective interactive training” programs.
Who May Conduct the Training?
To be qualified as a “trainer,” the individual must be either: (a) an attorney admitted to practice in any state for more than two years and whose practice includes employment law; or (b) a “human resources professional” or “harassment prevention consultant” with a minimum of two or more years of practical experience in areas related to sexual harassment, including training, responding to complaints, conducting investigations into sexual harassment complaints and/or advising employers or employees regarding discrimination/retaliation/harassment prevention; or (c) a professor or instructor in law school, college or university, who has a post-graduate degree or California teaching credentials and either twenty instruction hours or two or more years of experience teaching employment law. Individuals who do not meet these qualifications because of they lack the requisite years of experience may team teach with a trainer, provided the trainer supervises the individual and is available throughout the training to answer questions.
What Subjects Must the Training Cover?
The regulations specify certain subjects that must be covered in the training. Mandatory training subjects include: (a) the legal definition of sexual harassment; (b) statutory provisions; (c) types of conduct constituting harassment; (d) remedies available to harassment victims; (e) strategies to prevent harassment; (f) practical examples; (g) limited confidentiality of the complaint process; (h) resources available to victims of harassment; (i) employer’s obligation to conduct an effective investigation; (j) what to do if the supervisor is personally accused; (k) antiharassment policy elements; (l) how harassment complaints are filed; and (m) how to prevent harassment, discrimination, and retaliation. If an employer so chooses, it may address other forms of harassment as part of the training program.
What is Training Year Tracking?
Because all supervisors must be trained every two years, and within six months of being hired or promoted into a supervisory role, the regulations provide guidelines for how to track the training conducted. The regulations discuss “Training Year Tracking” or TYT. Using the TYT method of tracking, the training employer may designate the “training year” and retrain by the end of the next training year, two years later. Newly hired or promoted supervisors trained within six months of assuming supervisory duties may be included in next group training year, even if that is sooner than two years. Employers can shorten but not lengthen the training year.
It is the employer’s burden to establish and verify that all supervisors are appropriately trained in a timely manner. To verify the training, records must be maintained reflecting the name of supervisor being trained, the date on which the training occurred, the type of training, and the name of the trainer. Training records must be maintained for a minimum of two years.
Employers’ Bottom Line:
Sexual harassment training for supervisors is now the “law of the land” in California. If you have any questions regarding the new regulations or the law mandating sexual harassment training, please contact the Ford & Harrison attorney with whom you usually work or the author of this article, Helene Wasserman, hwasserman@fordharrison.com or 213-237-2403.