California Employment Lawyer

The Court of Appeal for the Second District reversed summary judgment on wage and hour claims in Porter v. Ralphs Grocery Company, No. B218220, 2010 WL 3704055 (Cal. Ct. App. 2d Dist. Sept. 23, 2010).  Plaintiff alleged that defendant required him to work overtime off the clock, and by doing this defendant both denied plaintiff proper wages and made it difficult for plaintiff to calculate the overtime pay due him.  Id. *8.  Plaintiff also alleged that defendant failed to afford meal periods of at least one-half hour in which he was relieved of all duties, and that he regularly worked without taking the 10 minute rest breaks due him.  Id. Plaintiff alleged violation of Labor Code sections 1174, 226.7, and 512. Id. He also alleged violation of Labor Code sections 201 and 203 for failure to pay all sums due plaintiff immediately upon termination of his employment.  Id. Additionally, he alleged defendant retaliated against him for his having requested that he not have to work off the books. Id.

The Court of Appeal held that “when an employee continues to work at the end of his shift even when not requested or required to do so, and the employer knows or has reason to know about such continuing work, then the time is considered working time and it is the duty of management to see that the post-shift work is not performed if it does not want the employee to work past his shift.” Id. *9 (citing Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)).

There was evidence that defendant’s policy is to schedule and post the time for its hourly employee’s meal breaks for each day, and its policy requires full-time employees to take meal breaks, permits them to take rest breaks, and forbids them to work off the clock.  Id. *8.  But the court found that:

[T]here was evidence that (1) [another janitor] was the person who told plaintiff when to take his meal breaks and rest breaks, (2) plaintiff clocked out at the end of his shift but continued to work at his job, and (3) plaintiff was sometimes denied meal and rest breaks. Also as noted above, although defendant presented evidence regarding its policies, conspicuously missing from the evidence are statements by Khoury, Connor or Pierre regarding to what degree these policies were actually followed at store 294.

Although defendant asserted its records indicate that with only two exceptions, plaintiff recorded taking a meal break every day from August 2007 to February 3, 2008, that does not necessarily answer plaintiff’s allegation that defendant failed to afford meal periods of at least one-half hour in which he was relieved of all duties. Also, although there is evidence that during that same time period the records show plaintiff recorded time in excess of eight hours at least twice a week on average, and although plaintiff admits that there were occasions when Khoury allowed him to work overtime, plaintiff also stated that three times a week at the end of his shift he clocked out but continued to work because even though no one told him to continue working he knew he would be written up if he did not finish his work, and he worked off the clock because there was too much work to finish in his regular shift. Also, there is no evidence from defendant regarding the period prior to August 2007 when Khoury became the store director.

Id. *8.

Additionally, there is evidence that (1) Khoury, Pierre and Connor ignored plaintiff when he talked about working off the clock, (2) they knew he was working overtime because they would see him working past the end of his shift, (3) plaintiff’s working off the clock began when Khoury took over the store, (4) the person who was store director prior to Khoury did not object to plaintiff working overtime on the clock, and (5) when plaintiff would tell Khoury he would not work off the clock and he was going home Khoury and Nacho would not say anything and they had no choice but to let him leave after his shift, but their attitude changed in that they would give plaintiff the “cold shoulder[ ],” and plaintiff’s hours would be cut and he would not get his full 40 hours a week. Moreover, the fact that plaintiff reviewed his paychecks to determine if they were correct and never informed management that they were not correct is not necessarily inconsistent with plaintiff’s assertion that he worked off the clock. There is evidence that complaining about off-the-clock work was not helpful to plaintiff. Thus a “correct” paycheck can, but not necessarily must, be viewed as one that does not reflect all overtime work and all work performed during meal and rest breaks but does reflect all other work time–that is, reflects all work time for which Khoury was willing to have plaintiff receive compensation.

Id. *9.

Thus, the court found that the “evidence in the record is sufficient to warrant denying defendant summary adjudication on these Labor  Code based causes of action.” Id. *9.

Judges and Attorneys

Justice H. Walter Croskey wrote the opinion for the court, with Presiding Justice Joan D. Klein and Justice Patti S. Kitching concurring.

Appeal was from a from a judgment of the Superior Court of Los Angeles County,  Hon. William P. Barry.

Irving Meyer for Plaintiff and Appellant.

Baker & Hostetler, Ronald J. Klepetar, Margaret Rosenthal and Nancy Inesta for Defendants and Respondents.

By CHARLES JUNG