by Michael Kun
As 2009 winds to a close, we can look backward, we can look forward, or we can do both.
For now, let’s just look forward with an eye toward what California employers can expect in 2010 as it relates to wage-hour law.
A warning, though: nothing on the horizon should hearten California employers.
1) Clarification of Meal and Rest Break Obligations
Sometime in 2010 — likely within the first quarter — California employers should finally receive an answer from the California Supreme Court to a lingering question about meal and rest breaks: does the requirement to "provide" breaks require that they be "ensured," or must they merely be "made available"?
The federal courts have reviewed this issue. They’ve broken open their dictionaries and, like the dictionary that sits on my desk, have found that "provide" is defined to mean "to make available."
The California Supreme Court is reviewing this issue in Brinker Restaurant Corp. v. Superior Court (Hohnbaum).
Will the California Supreme Court agree with the federal courts and issue an employer-friendly decision?
And perhaps not.
You could lose a lot of money betting on what the California Supreme Court will do in employment cases. (See, e.g., the Murphy v. Kenneth Cole decision, which few predicted.)
And even if the Court concludes that employers need only make those breaks available, any celebration by employers might be short-lived. Rest assured that a number of politicians already have proposed legislation sitting on their desks to reverse that decision and require that employers "ensure" that the breaks are taken.
Please feel free to insert your own joke here about the justice system and politicians.
2) Continuation of the Wage-Hour Class Action Epidemic
So, you think the wave of wage-hour class actions is about to come to an end?
Why would you think that?
Have plaintiffs’ lawyers grown weary of negotiating multi-million dollar settlements, and pocketing 40% of those settlements?
Of course not.
And until they do, there is no reason to believe that the wage-hour class actions are going to cease.
(And before someone responds by saying that this epidemic will end once employers cease violating the laws, stop. It used to be the case that if someone saw a mistake in his paycheck, he’d walk over to human resources, have it corrected, and that would be that. In fact, wouldn’t a good lawyer looking out for his client’s best interests advise him to do just that, rather than talk him into filing a class action lawsuit where it could be years before he receives that same amount? Of course. The real reason for the abundance of class actions is a system that rewards lawyers, often at the expense of the people they supposedly are representing.)
3) Claims Based On PDAs and Laptops
So, you’d like to know what the next wave of wage-hour claims will be?
It’s the PDAs that everyone carries with them. It’s the laptop computers that everyone has at home.
It used to be the case that employees left their work at the office (or the plant, or the store) when they went home. That was especially true of non-exempt employees.
Now, because they are so affordable, virtually everyone has a PDA they carry with them or a laptop at home.
Employees who respond to emails after hours, or who access the network from home to finish up a project, may be your most valuable, dedicated employees.
But at some point someone is going to question why they aren’t being paid for that time.
And if that time is more than de minimus, or if there is a claim that it is more than de minimus, it’s not difficult to imagine a lawsuit.
And, in particular, a class action.