Category Archives: Meal and Rest Breaks

Meal and Rest Break Class Certified in Light of Brinker

English: A guard at Prague Castle.

English: A guard at Prague Castle. (Photo credit: Wikipedia)

On Friday, the Court of Appeal for the Fourth District reversed a denial of certification of a meal and rest break class action.  Faulkinbury v. Boyd & Associates, Inc., No. G041702, __ Cal. App. 4th. __ (4th Dist. May 10, 2013).  Reconsidering in light of Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), the court concluded that the primary issue was the legality of certain company policies, which could be determined on a class-wide basis, even if the application of the policies varied by individual.

By CHARLES H. JUNG

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Second District Reverses Summary Judgment on All Wage and Hour Claims

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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)). Continue reading

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Second District Holds That, Pending Brinker, Employer Has a Duty to Provide Meal Breaks “as a Practical Matter”

Meal break for teamsters and horses from The P...
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While the California Supreme Court will resolve this issue shortly, in Brookler v. Radioshack Corp., B212893, 2010 WL 3341816 (Cal. Ct. App. 2d Dist. Aug. 26, 2010), an unpublished opinion issued today, the Second District Court of Appeal held that “Unless and until our Supreme Court holds otherwise, we agree with the analysis in Cicairos which held an employer’s obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory; it must also provide them as a practical matter.”

Morry Brookler filed a class action complaint against Radioshack for its alleged failure to provide employees with a meal period of not less than 30 minutes during a work period of more than five hours.  Id. *1.  The trial court certified the class. Radioshack filed a second motion for decertification after issuance of the opinion in Brinker, 165 Cal. App. 4th 25 which the trial court granted. The California Supreme Court granted review in Brinker and the matter is currently pending. Continue reading

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Labor Code Section 512 Does Not Apply to Public Employees

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The First District Court of Appeal held that Labor Code section 512 and IWC Wage Order No. 17 do not apply to public employees.  California Correctional Peace Officer’s Association, et al. v. State of California, No. A125679, 2010 WL 3248794 (Cal. Ct. App. 1st Dist. Aug. 18, 2010).  The California Correctional Peace Officers’ Association (CCPOA) filed a class action, contending that the State of California violated various Labor Code provisions, as well as wage orders promulgated by the Industrial Welfare Commission (IWC), by failing to provide correctional officers with meal periods and by failing to pay for the missed wage periods. CCPOA argued that the Legislature intended that the State provide its correctional officers with meal periods as required by Labor Code section 512 and IWC Wage Order No. 17, and that the State must pay for missed meal periods as required by Labor Code section 226.7.  The court rejected this argument, holding that “the subject wage and hour statutes do not apply to public employees.”  Id. *1. Continue reading

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Employees Entitled to 2 Hours Per Day for Meal & Rest Break Violations

Meal break in the bush
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Judge George H. King of the Central District denied plaintiff’s remand motion in Lara v. Trimac Transportation Services (Western) Inc., No. CV 10-4280-GHK (JCx), 2010 WL 3119366 (C.D. Cal. Aug. 6, 2010).

Plaintiff Miguel Lara’s (“Plaintiff”) brought a motion to remand on the grounds that Defendant Trimac Transportation Services (Western) Inc. (“Defendant”) failed to satisfy the amount in controversy requirement for diversity jurisdiction.  The court stated the amount in controversy requirement as follows: Continue reading

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Third District Holds that Employer May Recover Fees for Defense Against Allegation of Wrongly Denied Rest Periods

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In a case with serious implications for Plaintiff’s wage & hour attorneys, the Third District Court of Appeal held that an employer may recover its attorneys fees in a case alleging wrongful denial of rest breaks.  In Kirby v. Immoos Fire Protection, Inc., 2010 WL 2910075 (Cal. Ct. App. 3 Dist. July 27,2010) two former employees challenged an award of attorney’s fees to an employer who successfully defended against allegations of labor law violations. Plaintiff-Appellants Anthony Kirby and Rick Leech, Jr. sued Respondent-Defendant Immoos Fire Protection, Inc. as well as 750 Doe defendants for violating various labor laws as well as the unfair competition law (Bus. & Prof.Code, § 17200 et seq.). Plaintiff dismissed the case after the trial court denied class certification.

Judge Loren McMaster of the Sacramento Superior Court subsequently awarded $49,846.05 in attorney’s fees to Defendant for its defense of the first, sixth and seventh causes of action.  The first cause of action sought recover for violations of the UCL.  The third cause of action alleged that Immoos failed to pay overtime compensation, as required by sections 204.3, 510, and Industrial Wage Commission Order No. 16-2001 (Order No. 16-2001).  The sixth cause of action alleged that Immoos failed to provide Kirby with rest periods as required by Order No. 16-2001.  The Third District Court of Appeal reversed, allowing reasonable fees for the sixth cause of action only.

Defendant moved to recover attorney’s fees from Plaintiff pursuant to Labor Code section 218.5. Plaintiff opposed the motion arguing, in part, that the unilateral fee-shifting provision in favor of plaintiffs provided by Labor Code section 1194 barred an award of fees to Immoos.

Section 218.5 provides in pertinent part: “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action…. [¶] This section does not apply to any action for which attorney’s fees are recoverable under Section 1194.”

Section 1194 provides in relevant part: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

The trial court concluded that it is “apparent from the express language of … section 218.5, that only section 1194 can defeat a prevailing party employer’s entitlement to attorneys’ fees under that statute, under the rule of statutory construction, expressio unius est exclusio alterius-the expression of one thing is the exclusion of another.”  “As only [section] 1194 is named as an exception to 218.5, no other Labor Code sections may be implied to defeat a prevailing party employer’s entitlement to attorneys’ fees under that section.”

In addition to the fees allowed for defense against the complaint, the trial court awarded Immoos fees for bringing the motion for attorney’s fees.  Altogether, attorney’s fees were awarded to Immoos in the amount of $49,846.05.

The Court of Appeals concluded that the trial court did not err in awarding fees to Defendant for the sixth cause of action.  However, the court erred in awarding attorney’s fees for defense against claimed violations of section 2810 as set forth in the first and seventh causes of action.

Plaintiff argued that fees should not be awarded since section 218.5 includes an express exception to its bilateral fee-shifting provision, which states: “This section does not apply to any action for which attorney’s fees are recoverable under Section 1194.” Arguing that an “action” refers to an entire case, Kirby concluded that the inclusion of causes of action subject to section 1194 bars Immoos’s recovery of any attorney’s fees in this case.  The Court rejected the argument.

The Court construes the “section 1194 exception as applying only to causes of action for unpaid minimum and overtime wages.”  Id. at *6. “To adopt Kirby’s statutory construction would allow the exception of section 1194 ‘s unilateral fee shifting to eviscerate the rule of section 218.5.”  Id.

We harmonize sections 218.5 and 1194 by holding that section 218.5 applies to causes of action alleging nonpayment of wages, fringe benefits, or contributions to health, welfare and pension funds. If, in the same case, a plaintiff adds a cause of action for nonpayment of minimum wages or overtime, a defendant cannot recover attorney’s fees for work in defending against the minimum wage or overtime claims. Nonetheless, the addition of a claim for unpaid minimum wages or overtime does not preclude recovery by a prevailing defendant for a cause of action unrelated to the minimum wage or overtime claim so long as a statute or contract provides for fee shifting in favor of the defendant.

Id.

Since Plaintiff’s sixth cause of action alleged that Plaintiff was “owed an additional one hour of wages per day per missed rest period” the court concluded that it was a claim seeking additional wages.  Therefore section 218.5’s provision of attorney’s fees for “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions…” applied.  Id. **7-8.

It is now common practice to include a rest break claim in wage & hour complaints.  Plaintiffs attorneys will need to seriously reconsider whether they will continue this practice or risk bearing defendant’s fees in an unsuccessful claim.

By CHARLES H. JUNG

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Northern District Denies Certification of Joe’s Crab Shack Meal and Rest Break Class Action

A Joe's Crab Shack branch in San Diego, CA. Th...
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The Northern District of California denied class certification of a meal and rest break class action in Washington v. Joe’s Crab Shack, No. C 08-5551 PJH, 2010 WL 5396041 (N.D. Cal Dec. 23, 2010.) (slip op.).  Plaintiff Drew Garrett Washington asserted that defendant Crab Addison, Inc. (“Crab Addison”), a company that operates a number of Joe’s Crab Shack restaurants, failed to provide employees with meal and rest breaks, allowed its restaurant managers to manipulate employee time records to deprive employees of pay for all hours worked (including overtime and missed meal break pay), required employees to perform work “off the clock”; and required employees to pay for their own employer-mandated uniforms.  Id. *1.

Class Definition

Plaintiff moved pursuant to Federal Rule of Civil Procedure 23, to certify a plaintiff class consisting of “all non-exempt restaurant employees employed by Crab Addison at Joe’s Crab Shack restaurants in California from January 1, 2007, through the present.”

Discussion

The court denied the certification motion.  Id. *11.  “Plaintiff’s position is that common questions predominate because the main issue is whether—notwithstanding Crab Addison’s written policies—Joe’s Crab Shack restaurants in California followed a common unwritten policy of denying meal and rest breaks, failing to pay employees who did not take breaks, failing to pay for overtime, requiring employees to purchase their own uniforms, and so forth.” Id. Plaintiff contended that the existence of a policy or practice that in effect contradicts Crab Addison’s written policies can be ascertained by an analysis of the data in Crab Addison’s computer systems.  Id. “But since plaintiff has failed to adequately explain how that analysis works and exactly what the data shows, he has failed to adequately establish the existence of such a policy or practice.” Id. Continue reading

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