Wage & Hour Watch- Rest and Lunch Rules FINALLY to Get Clarified

The California Supreme Court has finally set a hearing in Brinker Restaurant Corp. v. Superior Court (Hohnbaum)(2008) 165 Cal.App.4th 25, which will be argued on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco. For employment lawyers, Brinker is one of the most eagerly-awaited cases on the California Supreme Court's docket, but has languished with the High Court for some time (the petition for review, filed more than three years ago).

The case presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers. In short, the issue is whether an employer need only make such breaks "available," or must the employer "ensure" that such breaks are taken. The 53 page Appellate decision, which essentially came down on the side of "make available" v. "ensure," can be summed up with the following excerpts from the opinion:

Reconsidering the matter following a transfer from the California Supreme Court and our vacating of the original opinion in this matter, we first recognize that "in light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed." (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702.) We also recognize mandatory rest and meal breaks have "have long been viewed as part of the remedial worker protection framework" designed to protect workers' health and safety. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy).) In addition, we note that in construing the applicable statutes and regulations, we look to the plain language of the laws and interpret them in a manner consistent with the Legislature's intent. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.)

With these principles in mind, we conclude ... that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

(Since this matter was/is a Class Action case, the Court also noted that "off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether [the employer] forced employees to work off the clock, whether [the employer] changed time records, and whether [the employer] knew or should have known employees were working off the clock" and thus struck down class certification.)

The reason for the Supreme Court review is that there appears to be a clear "split of authority" on this issue. In Cicairos v. Summit Logistics, Inc., the California Court of Appeal stated that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty.” [Cicairos v Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962]. It has been contended that this means that employers have an affirmative obligation to force employees to take their meal periods and that employees cannot refrain or refuse to take their meal periods.

Following the Supreme Court's acceptance of Brinker for review, the DLSE issued an October 23, 2008 memo to its enforcement staff that provided that the DLSE would enforce the "available" rather than "ensure" standard, stating:

"As the federal court in Brown v. Federal Express Corporation explained:

It is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. (249 F.R.D. 580, 585 (C.D.Cal. 2008)).

In addition, numerous, other federal courts in California have similarly held that employers are not obligated to ensure that their employees take meal periods. They include White v. Starbucks (N.D.Cal. 2007) 497 F.Supp.2d 1080; Perez v. Safety-Kleen Systems, Inc. (N.D.Cal. July 28, 2008) 2008 WL 2949268; Kenny v. Supercuts (N.D.Cal. June 2, 2008) 2008 WL 2265194, Salazar v. Avis Budget Group (S.D.Cal, July 2, 2008) 251 F.R.D. 529; Kimoto v. McDonald’s Corp. (C.D.Cal. August 28, 2008) 2008 WL 4069611; and Gabriella v. Wells Fargo Financial, Inc. (N.D.Cal August 4, 2008) 2008 WL 3200190.

Given that the Supreme Court typically has 90 days from oral argument to issue its decision, we can probably expect a definitive resolution of this key "wage and hour" issue by January 2012.

How to Deal with "Stale" Complaints of Harassment/Discrimination

In trying to stay current on employment issues, I belong or subscribe to a number of organizations, networking groups, forums, etc. In one of those networking group discussions, the question recently posed was how to deal with "stale" claims of harassment and/or discrimination.

The specific situation at issue involved an employer that apparently had dealt with a spate of claims from former employees that were anywhere from 12-24 months old. The question then was whether the employer could "spend less resources" investigating such claims. The response from colleague Nancy Richards-Stower in New Hampshire was quite good, and applicable here in California. She suggested that investigation of "stale" claims should be no different from more current ones, noting that "showing good faith and an interest in investigating fresh complaints is a best practice."

Ms. Richards-Stower then suggested circulating a memo to employees to remind them that concerns about violations of Company anti-harassment and anti-discrimination policies require employees to report their concerns right away to a designated person (usually someone in the Human Resources office). Such a memo should also highlight that the Company's ability to respond promptly to concerns is dependent upon timely reports.

This "stale claims" memo should also include a reminder that the Company's anti-retaliation policies forbid anyone retaliating against employees for reporting harassment or discrimination experienced by the employee directly, or by others. (If an employer's personnel manual doesn't include such language, it should.) In the event of future litigation, such a reminder to employees of company policies could serve as evidence of the employer's good faith in responding to harassment and discrimination complaints.

Covered employers have the obligation to investigate all claims of harassment and discrimination under California law, and the fact that some claims are "old" or "stale" does not diminish the employer's duty to investigate. From an employer's perspective, it is best to fully document the investigation efforts, and a memo such as the one suggested above further serves that purpose.

This discussion leads to a further point that I have made repeatedly in the past; a "best practice" (whether as an employee or employer) is to document as much as possible.

If an employee is harassed, documented evidence of such harassment in the form of emails, memos, diary entries or other tangible media, are far more persuasive to a jury than simple "he said/she said" testimony. Similarly, employers defending against such claims are far more likely to sway a jury if they can show that they made tangible (read "documented") efforts to limit harassment and discrimination, or to respond effectively to such claims when they arise. Employers and employees both benefit by clearly stated and documented policies. Thus, employers are encouraged to routinely circulate memos reiterating established policies, to foster employee understanding of those policies. Employees benefit from having clear ideas of what will or will not be tolerated in the workplace.

I've found that many potential employee issues can be avoided by "managing expectations" and regular communication with employees helps significantly in that regard. In the end, we all benefit from harassment and discrimination free work environments, and these efforts move us all toward that goal.

The "Dirty Dozen" of Legal Writing

I saw an article from the June Issue of the ABA Journal called "Dirty Dozen: 12 Ways to Write a Really Bad Brief" (see the link below), describing 12 "Donts" of legal writing, and thought I'd share. Looking at this from a more "positive" standpoint, I think that if you take anything away from these 12 "Don'ts", it is the following "Dos":

(1) Be brief;
(2) Be reasonable; and
(3) Be real.

Something that we may all, from time to time, forget is the "Golden Rule" of being an effective lawyer: Avoid the temptation to "sound like a lawyer." If you're too long-winded, too much of an advocate, and use too much legalese, you lose your audience (and in the case of legal brief, you lose the judge you're trying to convince). I also find that these 3 simple rules work well in trial when talking with jurors.

http://www.abajournal.com/magazine/article/dirty_dozen/

"Stray Remarks" Doctrine Repudiated

Back in December 2009, I posted regarding Reid v. Google, Inc. (2007) 155 Cal. App. 4th 1342,66 Cal.Rptr.3d 744, review granted, 72 Cal.Rptr.3d 112. One issue addressed by Reid was whether California law should recognize the so-called "stray remarks" doctrine when ruling on summery judgment. The “stray remarks” rule set forth in the Federal Courts, allows courts to deem racist or sexist remarks insufficient to support denial of summary judgment if the remarks are considered “stray.” [see Reid v. Google, Inc., 66 Cal.Rptr.3d 744, 759]

In August 2010, the California Supreme Court issued its opinion on this issue in Reid v. Google (2010) 50 Cal. 4th 512, 113 Cal.Rptr. 3d 327. There, the Supreme Court essentially repudiated application of the "stray remarks" doctrine in California, holding that even stray remarks must be viewed in context of all the plaintiff's evidence. The Court found that it was impermissible on a motion for summary judgment to "weigh and assess the remarks in isolation, and to disregard the potentialy damaging nature of discriminatory remarks simply because they are allegedly 'stray remarks' made by 'ondecisionmakers or [made by those] unrelated to the decisional process.'" [Reid, supra, 50 Cal. 4th at 540]

The significance of this decision is that employers cannot argue that discriminatory or harassing comments made within the workplace are merely "stray remarks" as a way of avoiding liability. The Supreme Court reaffirmed the rule in California that the plaintiff's evidence in such discrimination and/or harassment cases must be decided using a "a totality of circumstances analysis." [Reid, supra, 50 Cal. 4th at 541]

Private Email Communication?

Playing off a theme from recent posts, we again address the issue of employee privacy in the workplace. A recent case out of Sacramento [Holmes v. Petrovich Development Company LLC (2011) --- Cal.Rptr.3d ----, 2011 WL 117230 ("Holmes")] essentially says that employee emails, even those to or from the employee's attorney, are subject to employer review and therefore not private. (A copy of the Court's decision can be viewed here. http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF)

In Holmes, Plaintiff Gina Holmes was hired as an assistant to the CEO of Petrovich Development Co. LLC, Paul Petrovich in June 2004. At the time of her hiring, she was provided with an employee handbook, which Holmes admitted reading and signing. That handbook contained provisions clearly spelling out the policy concerning use of the company's technology resources, such as computers and e-mail accounts. The handbook directs employees that the company's technology resources should be used only for company business and that employees are prohibited from sending or receiving personal e-mails. Moreover, the handbook warns that “[e]mployees who use the Company's Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message.” The “Internet and Intranet Usage” policy in the handbook specifically states, “E-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter....” The handbook spells out further that the company may “inspect all files or messages ... at any time for any reason at its discretion” and that it would periodically monitor its technology resources for compliance with the company's policy.

Holmes advised the CEO that she was pregnant in July 2004, which apparently caused a strain in her employment relationship with the CEO. The two exchanged emails about Holmes' leave and what the CEO would do during her pregnancy leave. Apparently concerned that Holmes would quit, Petrovich forwarded the emails to HR. Holmes, meanwhile consulted a lawyer while at work. Holmes became upset that Petrovich was forwarding her emails to others in the organization and quit, claiming, inter alia, constructive discharge, discrimination, and harassment. She filed suit in September 2005, discovery ensued, and the defense sought summary judgment ("MSJ") on her claims in November 2006.

As a result of the MSJ, most of Holmes' claims were dismissed except for the intentional infliction of emotional distress and invasion of privacy claims. At trial, Plaintiff lost on those claims. Holmes then appealed claiming that the trial court should not have allowed Petrovich to use the emails she sent to a lawyer. The 3rd District disagreed. Noting that the employer had a pretty clear company policy regarding use of electronic media, the Court stated:

Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)

The Court in Holmes also noted:

When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.

[As an aside, we note that the Court in Holmes discussed in some length the Quon case, previously addressed in our blog. (See our June 17, 2010 blog entry.)]

The lessons to be learned here are: (1) from an employee perspective, there is little "expectation of privacy" in company emails (or other electronic communication), provided there is a clearly defined employer policy on the issue in place, and an employee should simply avoid communicating with lawyers, or others, that he or she wants to keep "private" using workplace electronic devices because such communications may not be private or privileged;(2) from an employer perspective, it is important that the Company's eletronic media policy be very clearly defined and documented-if so, such a policy will likely be upheld.