On June 10, 2019, the U.S. Supreme Court reversed a decision of the Ninth Circuit Court of Appeal and unanimously held that California state wage-and-hour laws do not apply to drilling workers off the coast of California.

In Parker Drilling Management Services, Ltd. v. Newton, the Court held that, under the Outer Continental Shelf Lands Act (“OCSLA”), state law “is not adopted as surrogate federal law” on the Outer Continental Shelf (“OCS”) if “federal law addresses the relevant issue.”

In the case, an employee on the OCS brought claims under a variety of California wage-and-hour laws, including alleging that he was not compensated for time spent on standby.  Under the OCSLA, the laws of each state adjacent to the OCS are applied, as long as those state laws are “applicable” and not inconsistent with federal law.  The Ninth Circuit interpreted that to mean that state laws are “applicable” when they “pertain[] to the subject matter at hand,” and that such laws are “inconsistent” with federal law only “if they are mutually incompatible, incongruous, [or] inharmonious.”  The Ninth Circuit concluded that California wage-and-hour laws are not inconsistent with the FLSA because “the FLSA saving clause ‘explicitly permits more protective state wage and hour laws.’”

The Supreme Court reversed, holding that “state laws can be ‘applicable and not inconsistent’ with federal law under [the OCSLA] only if federal law does not address the relevant issue.’”  The key question, the Court explained, is not whether there is a conflict between state and federal law, but rather “whether federal law has already addressed the relevant issue.”  Accordingly, the Court held that California law was not applicable to the plaintiff’s  claims for standby pay because “federal law already addresses this issue.”  The same was true for the plaintiff’s claims based on California’s minimum wage.

Because this case concerned the OCSLA, its impact will likely be relatively limited.  However, it may shed light on the Court’s views of statutory interpretation, especially considering the unanimity of the decision.

Earlier this year, in New Prime, Inc. v. Oliveira, 586 U.S. __, 139 S. Ct 532 (2019), the United States Supreme Court held that the Federal Arbitration Act (“FAA”) does not apply to arbitration agreements with independent contractors who are engaged in interstate commerce.  The Supreme Court did not address whether such agreements could be enforced through other laws.

Now, two different panels of the New Jersey Appellate Division have rendered decisions addressing this unresolved issue.  Those panels, however, reached different conclusions regarding whether the arbitration agreements in question barred independent contractor delivery truck drivers from pursuing wage hour claims in court.

The U.S. Supreme Court’s Decision in New Prime, Inc. v. Oliveira

In both cases, the Appellate Division panels relied on the United States Supreme Court’s recent ruling in New Prime.  The plaintiff in New Prime was a delivery truck driver who was party to a contract classifying him as an independent contractor and requiring him to arbitrate any disputes between the parties.

The Supreme Court decision in New Prime analyzed the language of Section 1 of the Federal Arbitration Act (“FAA”) stating that the FAA does not apply to “contracts of employment” with “workers engaged in foreign or interstate commerce.”  The Supreme Court concluded that the term “contracts of employment” referred to “agreements to perform work,” and therefore the FAA applied not only to employer-employee contracts but also to agreements with independent contractors.

Because the FAA specifically states that workers engaged in interstate commerce were exempt from coverage, the Supreme Court concluded that the courts “lacked authority” under the FAA to order arbitration in that matter.

Colon et al. v. Strategic Delivery Solutions LLC

In Colon et al. v. Strategic Delivery Solutions LLC, the plaintiffs provided transportation services through agreements with Strategic Delivery Solutions LLC.  The agreements classified the plaintiffs as independent contractors, required them to arbitrate any claims and stated that the plaintiffs would “comply and be bound” by the FAA.  The plaintiffs claimed that they were actually employees of the company, and filed suit under the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law.

The company moved to compel arbitration, and the plaintiffs asserted that their “employment contracts” were not covered by the FAA because they were engaged in interstate transportation.  The trial court, however, compelled arbitration without ruling on this argument.

A three-judge panel of the Appellate Division cited to the U.S. Supreme Court’s decision in New Prime and remanded the case.  The panel directed the trial court to determine whether the plaintiffs were providing transportation services on an interstate basis and therefore were exempt from coverage under Section 1 of the FAA.

The panel then stated that, even if the FAA does not apply, the New Jersey Arbitration Act (“NJAA”) applies and requires arbitration of the plaintiffs’ claims (even though the agreement between the parties did not reference the NJAA).

The NJAA “governs all agreements to arbitrate” that are covered by New Jersey law, but is preempted if a contract is covered by the FAA.  The panel concluded that, if the plaintiffs’ arbitration agreement were exempt from coverage under the FAA, the FAA had no preemptive effect and therefore that agreement was enforceable under the NJAA.

Arafa v. Health Express Corporation

A day after the Strategic Delivery Solutions decision, a different panel of the Appellate Division considered a very similar fact pattern in Arafa v. Health Express Corporation.  In that case, the plaintiff was a delivery truck driver who alleged that he was misclassified as an independent contractor rather than an employee.  The plaintiff filed a lawsuit against Health Express under the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law.

Health Express moved to dismiss the case and compel arbitration based on an arbitration agreement that stated it was “governed by the Federal Arbitration Act.”  The plaintiff opposed the motion by citing to the language exempting workers engaged in interstate commerce from the coverage of the FAA.  Prior to the U.S. Supreme Court’s decision in New Prime, the trial court granted the Company’s motion and compelled arbitration.

A three judge panel of the Appellate Division concluded, based on the New Prime decision, that the plaintiff’s contract with Health Express “qualifies under Section 1” as an employment contract that is exempt from coverage under the FAA.

Unlike the panel in Strategic Delivery Solutions, the panel in the Health Express case did not proceed to analyze the applicability of the NJAA.

Rather, after finding that the FAA did not apply, the panel concluded that the inapplicability of the FAA “undermines the entire premise of their contract.  Because the FAA cannot apply to the arbitration, as required by the parties, their arbitration agreement is unenforceable for lack of mutual assent.”  The trial court’s order compelling arbitration was therefore reversed.

In light of the different analyses and conclusions in Strategic Delivery Solutions and Health Express, it appears that a decision by the New Jersey Supreme Court or an en banc Appellate Division will be necessary to resolve whether New Jersey arbitration agreements that incorrectly purport to be covered by the FAA can be enforced under the NJAA or are void for lack of mutual assent.

While it may be true that employees rarely even look at their wage statements, there is one group of persons who certainly do – plaintiffs’ lawyers.  Or, more precisely, California plaintiffs’ lawyers.

And after a stunning $102 million award against Wal-Mart for wage statements that the court concluded did not fully comply with California’s onerous wage statement laws, California plaintiffs’ lawyers are likely to look at their clients’ wage statements even more closely – and to file even more class action lawsuits alleging that employers’ wage statements failed to dot every “I” and cross every “T.”

In the case known as Robert Magadia v. Wal-Mart Associates, Inc., pending in the United States District Court for the Northern District of California, the named plaintiffs brought a variety of wage-hour claims, including alleging that Wal-Mart’s California employees were not provided proper compensation for missed meal periods and did not receive compliant wage statements.

A three-day bench trial was conducted in late 2018.  And a little more than 6 months later, Hon. Lucy Koh issued her findings, awarding nearly $102 million to Wal-Mart employees.

The overwhelming majority of the award was for wage statements that Judge Koh concluded did not comply in full with California Labor Code section 226 – approximately $48 million in statutory damages and $54 million in penalties under the Private Attorneys General Act (“PAGA”).

Judge Koh’s concern was that Wal-Mart’s wage statements identified a lump sum for additional overtime that individuals received as a result of bonuses – identified as “OVERTIME/INCT” — without breaking down how that sum was calculated.

The award is almost certain to be appealed, and given the dearth of law on the issue, there is reason to believe the decision could in fact be overturned by the Ninth Circuit.

But the award itself will be enough to encourage employees and their counsel to closely scrutinize wage statements to determine if there are any possible omissions on which a class action could be based.

And for that reason alone employers with operations in California would be wise to review their wage statements closely to ensure that they comply in full with Labor Code section 226.

Connecticut appears poised to become the next state to raise its minimum wage to $15 per hour, following the trend set by California, Illinois, Massachusetts, New Jersey, New York, and most recently Maryland, in addition to numerous local jurisdictions.  Governor Ed Lamont is expected to sign H.B. 5004, which passed the state’s House and Senate earlier this month.

Under the bill, the state’s current minimum wage of $10.10 will increase to $11 on October 1, 2019. From there, it will increase one dollar every eleven months until it reaches $15 on June 1, 2023. Thereafter, increases will be tied to the U.S. Department of Labor’s Employment Cost Index and become effective each year on January 1. The bill includes a provision under which the governor can recommend to the state’s legislature suspension of the increases after two quarters of negative growth in the state’s real gross domestic product.

The bill does not change the tip credit allowed for certain tipped workers, which remains $6.38 for tipped hotel and restaurant staff and $8.23 for bartenders.

Employers may still pay employees under the age of 18 a rate of no less than 85% of the minimum wage when they begin work, but the amount of time this sub-minimum wage is permitted will decrease from the first 200 days of employment to the first 90 days of employment. Additionally, this sub-minimum wage will no longer be available for learners and beginners or for emancipated minors.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into May 2019.

The U.S. House Appropriations Committee heard testimony last month in a hearing entitled, “Combatting Wage Theft: The Critical Role of Wage and Hour Enforcement.” Our colleague Paul DeCamp testified at the hearing to provide insight on the concept of “wage theft” and the state of wage and hour enforcement, as well as how these issues affect employers and workers.

Watch the full episode.

On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter concluding that workers providing services to customers referred to them through an unidentified virtual marketplace are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”).

Although the opinion letter is not “binding” authority, the DOL’s guidance should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA. The opinion letter may also be of value to businesses facing other kinds of claims from gig economy workers that are predicated on employee status, such as organizing for collective bargaining purposes.

Overview

An unidentified “virtual marketplace company” – defined by the DOL to include an “online and/or smartphone-based referral service that connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services” – requested an opinion on whether service providers who utilize the company’s platform to connect with customers are employees or independent contractors under the FLSA.

To answer this question, the DOL analyzed whether, and to what extent, the service providers are “economically dependent” upon the company. Applying what is commonly referred to as the “economic realities test,” the DOL considered the following six factors:

  1. the nature and degree of the putative employer’s control;
  2. the permanency of the relationship;
  3. the level of the worker’s investment in facilities, equipment, or helpers;
  4. the amount of skill, initiative, judgment, or foresight needed;
  5. the worker’s opportunity for profit and loss; and
  6. the extent to which the worker’s services are integrated into the putative employer’s business.

The DOL noted that because status determinations depend upon the “circumstances of the whole activity,” it could not “simply count[] factors” when evaluating the service providers’ independent contractor status. Instead, it needed to weigh the relevant factors to determine whether the service providers are in business for themselves, or economically dependent on the company.

The DOL’s Analysis

The DOL began its analysis by explaining that because the service providers work for customers – and not the virtual marketplace, or the company that maintains it – it was “inherently difficult to conceptualize the service providers’ ‘working relationship’” with the company. The DOL then applied the factors listed above, finding that each weighed in favor of independent contractor status.

  • Control. The DOL determined that the “control” factor weighed heavily in favor of independent contractor status.  In reaching this conclusion, the DOL noted that the service providers – who have the right to accept, reject, or ignore any opportunity offered to them through the platform – control “if, when, where, how, and for whom they will work,” and are not required to complete a minimum number of jobs in order to maintain access to the platform. The DOL also pointed to the service providers’ freedom to work for competitors, and to simultaneously use competing platforms when looking for work.  Finally, the DOL found that the service providers are subject to minimal, if any, supervision.  Although customers have the ability to rate the service providers’ performance, the company does not inspect the service providers’ work or rate their performance, or otherwise monitor, supervise, or control the details of their work.
  • Permanence. The DOL found that the lack of permanence in the parties’ relationship weighed strongly in favor of independent contractor status because: (i) the service providers have a “high degree of freedom to exit” the relationship; (ii) the service providers are not restricted from “interacting with competitors” during the course of the parties’ relationship (or after the relationship ends); and (iii) even if the service providers maintain a “lengthy working relationship” with the company, they do so only on a “project-by-project” basis.
  • Investment. The DOL next concluded that the level of investment favored independent contractor status, reasoning that although the company invests in its platform, it does not invest in facilities, equipment, or helpers on behalf of the service providers, who are responsible for all costs associated with the “necessary resources for their work.”
  • Skill and Initiative. Although the company did not disclose the specific types of services available to customers through the platform, the DOL concluded that the level of skill and initiative needed to perform the work supported independent contractor status. Regardless of the specific types of work they perform, the service providers “choose between different service opportunities and competing virtual platforms,” “exercise managerial discretion in order to maximize their profits,” and do not receive training from the company.
  • Opportunity for Profit and Loss. The DOL found that although the company sets default prices, the service providers control the major determinants of profit and loss because they are able to select among different jobs with different prices, accept as many jobs as they see fit, and negotiate with customers over pricing.  The DOL also found that the service providers can “further control their profit or loss” by “toggling back and forth between” competing platforms, and determining whether to cancel an accepted job (and incur a cancellation fee) if they find a more lucrative opportunity.
  • Integration. The DOL concluded that the service providers are not integrated into the company’s business operations because: (i) the service providers do not develop, maintain, or operate the company’s platform; (ii) the company’s business operations effectively terminate at the point of connecting service providers to consumers; and (iii) the company’s “primary purpose” is to provide a referral system to connect service providers with consumers in need of services – not to provide any of those services itself.

The DOL found that these facts “demonstrate economic independence, rather than economic dependence,” and concluded that the service providers are independent contractors under the FLSA.

Takeaways

As noted by the DOL, determining “[w]hether a worker is economically dependent on a potential employer is a fact-specific inquiry that is individualized to each worker.” In addition, the tests for determining independent contractor status vary by statute, and by jurisdiction. Accordingly, agencies in some jurisdictions, including in states that apply the “ABC test” to determine independent contractor status in certain contexts, such as California and New Jersey, may disregard the opinion letter. Indeed, the New Jersey Labor Commissioner recently issued a statement indicating that the opinion letter “has zero effect on how the New Jersey Department of Labor enforces state laws … [because] the statutory three-part test for independent contractor status [in New Jersey] … is distinct from and much more rigorous than the standard referenced in the opinion letter.” Nevertheless, the opinion letter should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA, and in jurisdictions that apply tests that overlap with the FLSA’s economic realities test.

The opinion letter may also be of value to businesses facing other kinds of claims from gig economy workers that are predicated on employee status, such as organizing for collective bargaining purposes. Earlier this year, the National Labor Relations Board (“NLRB” or “Board”) adopted a new test to be used in distinguishing between “employees,” who have rights under the National Labor Relations Act (“NLRA” or “Act”) and independent contractors who do not. In its January 25, 2019 decision in SuperShuttle DFW, Inc., 367 NLRB No.75 (2019) the Board rejected the test adopted in 2014 in FedEx Home Delivery, 361 NLRB 610 (2014) and returned to the common-law test, finding that the test adopted in FedEx minimized the significance of a worker’s entrepreneurial opportunity.

SuperShuttle involved a union petition for an election among a group of franchisees operating SuperShuttle airport vans at Dallas-Fort Worth Airport. In response to the petition, SuperShuttle, the franchisor, argued that the franchisees who were seeking representation were not employees but rather independent contractors and as such were not entitled to vote in an NLRB election or to exercise the rights granted to employees, but not independent contractors, under the Act. The Board found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain. These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board’s finding that the franchisees are not employees under the Act. While the tests for determining independent contractor status under the NLRA and FLSA differ, both the Board’s decision in SuperShuttle and the DOL’s opinion letter emphasize similar themes, including the significance of a worker’s economic opportunity and discretion.

In April 2018, the California Supreme Court issued its long-awaited opinion in Dynamex Operations West, Inc. v. Superior Court, dramatically changing the standard for determining whether workers in California should be classified as employees or as independent contractors for purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”). In so doing, the Court held that there is a presumption that individuals are employees, and that an entity classifying an individual as an independent contractor bears the burden of establishing that such a classification is proper under the “ABC test” used in some other jurisdictions.

Specifically, the ”ABC” test requires the hiring entity to establish each of the following three factors:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Understandably, in response to Dynamex, many employers reviewed their practices relating to independent contractors to confirm whether they satisfied the new “ABC” test.

And, just as understandably, employers were concerned about whether Dynamex would apply retroactively.

The Ninth Circuit has now addressed that issue and has concluded that Dynamex in fact applies retroactively.

In Vazquez v. Jan-Pro Franchising International, Inc., the defendant – an international janitorial cleaning business — was awarded summary judgment on minimum wage and overtime claims stemming from allegations that janitors had been misclassified as independent contractors as part of its “three-tier” franchising model.  The plaintiffs appealed, and the Dynamex decision was issued while the case was on appeal. The Ninth Circuit ordered the parties to brief the effect of that decision on the merits of the case.

The defendant devoted most of its supplemental briefing to arguing that Dynamex did not apply retroactively.  The Ninth Circuit disagreed, concluding that it in fact applies retroactively largely because the Dynamex Court stated it was merely “clarifying” existing law rather than departing from it, and remanded the case to the district court for further proceedings in which the new “ABC” test is to be applied retroactively.

Barring a dramatic development, such as a reversal by the United States Supreme Court, this decision should be of great concern to any entity that retained workers as independent contractors prior to Dynamex.  Those entities may now be exposed to litigation for failing to comply with an “ABC” test that they had no reason to believe they needed to comply with for the simple reason that it did not even exist.

Webinar – Spring/Summer 2019

Internship programs can help employers source and develop talent, but they do not come without their pitfalls. If you are an employer at a tech startup, a large financial institution, a fashion house, or something else entirely, and you plan on having interns this summer, this webinar is for you. Learn the steps for creating a legally compliant internship program.

For many years, the U.S. Department of Labor (“DOL”) used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern would not be subject to the wage and hour requirements of the Fair Labor Standards Act. This changed at the beginning of 2018, when the DOL adopted the “primary beneficiary test” in a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience. Employers that fail to follow the requirements to ensure that an intern is properly treated as an unpaid intern, rather than an employee who is entitled to minimum wages and overtime, could face costly wage and hour litigation.

Our colleagues Jeffrey M. Landes, Lauri F. Rasnick, and Ann Knuckles Mahoney guide viewers on how they can establish lawful unpaid internship programs. This webinar also addresses the extent to which wage and hour laws apply to interns, and the seven factors that make up the “primary beneficiary test.” This webinar provides viewers practical tips for administering an internship program, whether paid or unpaid, by identifying key considerations for all stages of the internship process.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleague Stuart M. Gerson at Epstein Becker Green recently posted an article on LinkedIn that will be of interest to our readers: “SCOTUS Today: Class Action Ambiguity Finds No Shelter Under the Federal Arbitration Act.”

Following is an excerpt:

In a 5-4 opinion (divided on expected conservative/liberal lines), authored by the Chief Justice, the Supreme Court has ruled in the case of Lamps Plus, Inc. v. Varella, No. 17-988, that under the Federal Arbitration Act (“FAA”), an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.

This reverses the decision of the Ninth Circuit concerning a case relating to the unauthorized disclosure of personal tax information of employees of Lamps Plus after a hacker tricked an employee into divulging that information. The Supreme Court had held in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, that a court may not compel class-wide arbitration when an agreement is silent on the availability of such arbitration. Lamps Plusextends that holding to agreements that are ambiguous. In so doing, the Court’s majority stressed the FAA mandate that arbitration is a matter of consent, and is yet another example of the conservative majority of the Court, led particularly by Chief Justice Roberts, acting to limit the flow of employment and commercial disputes into the federal courts by strongly enforcing the FAA against various policy arguments made by labor unions and other employee groups and organizations on the jurisprudential left. See most recently Epic Systems Corp. v. Lewis, 584 U. S. ___ (2018). …

Read the full article here.

On April 12, 2019, in a federal case known as Hamilton v Wal-Mart Stores, Inc., a California jury awarded more than $6 million in meal break premiums to a class of Wal-Mart employees who worked at the company’s fulfillment center in Chino, California.  The jury found that by requiring class members to complete a mandatory security check prior to leaving the facility, Wal-Mart discouraged them from leaving the premises for meal breaks, failing to comply with its obligation to provide class members with required meal breaks.  The verdict – which Wal-Mart may well appeal – provides guidance to employers doing business in California.

Background

In the lawsuit, the plaintiffs alleged that the company violated California law by, among other things: (i) requiring class members to complete a mandatory security check when leaving the facility, which allegedly infringed on their 30-minute meal periods (the “Meal Period Interruption Theory”), and discouraged them from leaving the premises during meal breaks (the “Meal Period Discouragement Theory”); (ii) failing to compensate class members for time spent walking to the security checkpoint, waiting in line, and passing through security, which allegedly resulted in unpaid wages and overtime (the “Off-The-Clock Theory”); (iii) failing to properly pay overtime to class members who worked alternative workweek schedules; (iv) failing to pay all wages due upon separation of employment; and (v) failing to provide accurate wage statements.

The Court certified several subclasses associated with these claims in August 2018.  However, in March 2019, the Court decertified subclasses associated with the plaintiffs’ Meal Period Interruption and Off-The-Clock Theories.

Both sides unsuccessfully moved for partial summary judgment prior to trial.  In denying the portion of Wal-Mart’s motion that addressed the plaintiffs’ Meal Period Discouragement Theory, the Court rejected the notion that the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), prohibits “employers only from preventing employees from taking a meal break.”  Instead, the Court held that “California law imposes an affirmative obligation on employers to provide employees with meal breaks.”[1]  The Court further found that Wal-Mart’s mandatory security check “arguably ‘impedes or discourages’ associates from taking an ‘uninterrupted 30-minute break’ because employees have only two options: leave the premises and go through the security check even though the security check may eat up some part of their meal break or stay inside the facility.”  The parties proceeded to trial on this issue, and the other surviving claims, on April 3, 2019.

The Verdict

The jury returned its verdict on April 12, 2019.  Although the jury found that Wal-Mart had satisfied its obligations with respect to paying overtime to class members on alternative workweek schedules, it awarded more than $6 million to the class in meal break premiums pursuant to the plaintiffs’ Meal Period Discouragement Theory.  The jury found that by requiring class members to complete the mandatory security check prior to leaving the facility, which discouraged them from leaving the premises for lunch, Wal-Mart failed to meet its obligation to provide class members with required meal breaks.

Takeaways

Unless the verdict is overturned on appeal, as it may be, this verdict sheds light on the scope of an employer’s obligation to “provide” meal breaks under Brinker, and on how juries might apply the law to unique fact patterns, including those involving security checks and other practices that could potentially dissuade employees from leaving their worksite for meal periods.  The award also serves as a reminder to employers with operations in California to take a holistic approach when evaluating compliance with wage and hour laws.  Even practices that might appear to have little or no bearing on an employee’s working hours, compensation, or break time may indirectly create significant exposure under the law.

___________________

[1] In Brinker, the California Supreme Court held that an employer satisfies its obligation to provide meal breaks “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”  53 Cal. 4th at 1040.