Law Office Management
Feb. 2, 2010
No Break in Worker Suits
Employee allegations that they’re forced to work through meal or rest periods are a booming area in California law.
Cases in which employees allege they were forced to work through legally mandated meal or break periods are taking off in the already fast-growing niche of wage-and-hour litigation. Tony Oncidi, a labor-and-employment law partner at Proskauer Rose in Los Angeles, says that wage-and-hour litigation makes up 50 to 60 percent of his office's practice?and most of those cases involve a meal-and-rest-break component. Five years ago, wage-and-hour disputes constituted only 25 percent of the office's practice. Anthony Zaller, a founding partner of employer-defense firm Van Vleck Turner & Zaller, estimates that more than half of the wage-and-hour class actions filed lately at the Stanley Mosk Courthouse in Los Angeles are meal-and-rest-break suits. Such litigation, he adds, is "red hot" right now. But it is, in fact, only the latest wave in a decade-long surge in wage-and-hour class actions in California. The first wave followed passage of California's Workplace Flexibility Act of 1999, which formally adopted an eight-hour workday and established time-and-a-half pay for hourly employees who work overtime. Initially, employees brought mostly misclassification suits, alleging that they had been denied overtime pay because they were improperly designated as salaried employees?rather than hourly workers. To avoid such liability, many employers by 2006 were switching as many employees as possible to hourly pay. Next, class action suits alleging that hourly employees had been denied overtime pay for time worked off the clock predominated. And now the focus has shifted to enforcing meal-and-rest breaks. "Meal-and-rest-break claims have been around for awhile, but it was only in the last couple of years that we really started seeing them as the primary claim?as opposed to a piggyback claim?in putative class actions being filed," says Robin Weideman, partner at Carlton DiSante & Freudenberger in Sacramento. "One of the primary reasons for the boom in meal-period litigation is the California Supreme Court's decision in Murphy v. Kenneth Cole Productions, Inc. (40 Cal. 4th 1094 (2007), in which the court held that the one hour of premium pay recoverable for a missed break is a 'wage' and not a 'penalty.' The significance of this decision is that a much longer statute of limitations applies to claims for unpaid wages than for penalties." But two cases before the California Supreme Court have the potential to rein in this most recent trend. In Brinker Restaurant Corp. v. Superior Court (165 Cal. App. 4th 25 (2008)) and its companion, Brinkley v. Public Storage, Inc. (167 Cal. App. 4th 1278 (2008)), the court will rule on the meaning of the labor statute ordering employers to "provide" meal-and-rest breaks?determining whether California Labor Code 512 means employers only must make breaks available, or whether they also must ensure that employees take the breaks. Regardless of the outcome of those cases, no one foresees a near-term end to the broader wage-and-hour boom: According to a recent Fulbright & Jaworski survey, nearly 30 percent more wage-and-hour lawsuits were filed in California than nationwide last year. And even if meal-and-rest-break suits drop off, Proskauer Rose's Oncidi predicts, they may well be replaced by class actions involving employees' use of communications technology off the clock - for example, seeking pay for workers who send work-related emails and texts after hours. "When the rules were written, in the smokestack America in the fifties, employees were unable to work outside the job," says Oncidi. "Now we have an information-and-service economy. If employees are still [writing] business email after hours, that counts. And if employers are not thinking about it [as time worked], that's where we could see the next big thing."
Kari Santos
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