Wage & Hour Defense Blog : Wage & Hour Lawyer & Attorney : Epstein Becker Green Law Firm : DOL Enforcement, FLSA Coverage

By Rhea G. Mariano and Betsy Johnson

The issue of whether California law requires employers to ensure that employees take meal periods or to merely make meal periods available is hotly contested and regularly litigated.  The issue is currently before the California Supreme Court in Brinker Restaurant v. Superior Court (review granted Oct. 22, 2008 (Brinker) and Brinkley v. Public Storage (review granted Jan. 14, 2009 (Brinkley)). 

While employers await the California Supreme Court’s decision in Brinker and Brinkley, on May 10, 2011, the California Court of Appeal, Second Appellate District Court, issued another positive decision for employers and held that employers are not required to force employees to take meal periods:  “It is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that employees do anything particular during that time.”  Lamps Plus Overtime Cases (CA2/8 B220954 5/10/11).

In the Lamps Plus Overtime Cases, the Appellate Court upheld the lower court’s decision to deny class certification with respect to claims of failure to provide meal and rest breaks, among other claims, against Lamps Plus, Inc., et al. (“Lamps Plus”).  The Court concluded: 

Consistent with the purpose of requiring employers to provide employees with meal breaks, the Labor Code and the IWC use mandatory language precluding employers from pressuring employees to skip breaks, declining to schedule breaks, or establishing a work environment discouraging or preventing employees from taking such breaks. (See, e.g., Lab. Code, § 226.7, subd. (a) [“No employer shall require any employee to work during any meal or rest period . . .”].)  This mandatory language does not mean employers must ensure employees take meal breaks.  Rather, employers must only provide breaks, meaning, make them available. …  The language regarding rest breaks is more permissive.  An employer need only “authorize and permit” rest breaks. (Cal. Code Regs., tit. 8, § 11070, subd. 12, italics added.)

The Court also provided guidance in opposing class certification.  The Court found no evidence of a class-wide policy or practice of preventing employees from taking meal periods.  On the contrary, Lamps Plus employees were required to sign a form stating that they acknowledge that the company policy upholds the rest and meal break laws, that they will comply with the company policy, and that they will report any missed break to human resources.  Lamps Plus supervisors were authorized to take disciplinary action to enforce the policy.  The Court held that under these facts, it “does not make sense” to require an employer to pay a penalty to every employee who chooses to skip a rest and/or meal break.

The ruling in the Lamps Plus Overtime Cases is positive for employers.  However, while the California Supreme Court reviews Brinker and Brinkley, the decisions from the Court of Appeal provide helpful guidance to employers but are of limited precedential value. 

By Michael Kun and Betsy Johnson

Under the Obama administration, the U.S. Department of Labor (DOL) has implemented a number of initiatives in support of its enforcement of federal wage and hour laws and its mission of making employers more accountable for compliance with these laws.  These include the “We Can Help” and “Bridge to Justice” initiatives.

The DOL has now announced that it is launching a free application for smartphones.  This new “app” provides non-exempt employees with an electronic “timesheet” that allows them to independently track the hours they work and determine the amount of wages owed. The new application is available in both English and Spanish, and it allows users to track regular work hours, break time and overtime hours for themselves and/or co-workers.  The DOL intends to explore other applications that would allow employees to independently track tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

The DOL believes that this new technology will become a significant tool for employees, allowing them to keep their own records instead of relying on their employers’ records. The DOL envisions that these employee records may prove “invaluable” to the DOL during investigations in cases where an employer has not maintained accurate employment records.

The free app is currently compatible with the iPhone and iPod Touch, but the feature may be expanded to other smartphone platforms, such as Android and BlackBerry.  For workers without a smartphone, the DOL has designed a printable work hours calendar in English and Spanish that allows employees to track their hours worked, breaks and rates of pay. The calendar also includes information about workers’ rights and how to file a wage violation complaint.

What Should Employers Do Now?

Under the Fair Labor Standards Act (FLSA), employers bear the burden of maintaining accurate records.  Where employers fail to do so, the DOL will accord a presumption of accuracy to any records that the employees produce. The DOL has not indicated how it will deal with situations where an employer maintains records that appear to be accurate but are in conflict with the employees’ own records.  However, it is quite possible that the DOL will look for ways to disregard employer records if there appear to be any defects, inaccuracies or gaps in the manner in which the employer maintains its records. As the DOL continues to use the latest technology to assist both the DOL and employees in the enforcement of federal wage and hour laws, it is imperative that employers develop, implement and rigorously enforce their time keeping and reporting policies to ensure that they have accurate time, attendance and payroll records for all employees, especially non-exempt employees. 

Please join David Barron, Jay P. Krupin, and other attorneys from EpsteinBeckerGreen as we present eight panels covering labor and employment topics that have increasingly impacted employers in the health care industry. 

Our first panel, entitled Significant Labor and Employment Issues that Affect Health Entities, will include representatives from the health care industry, such as a hospitals, skilled nursing facilities, and emergency medical services. These executive panelists will discuss the critical labor and employment issues they are currently experiencing and the greatest challenges they expect to manage. 

EpsteinBeckerGreen attorneys representing the Labor and Employment, Health Care and Life Sciences, and Corporate Services practices will review the issues of concern and, over the course of the day, offer practical advice and solutions.

For more details and registration information, please visit the EpsteinBeckerGreen HEAL Summit page.

We hope to meet you and other readers of this blog.