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Attorneys Fees are Not Recoverable in Claims for Meal and Rest Period Violations

California employers have reason to celebrate: In Kirby v. Immoos Fire Protection Inc. ("Kirby") the California Supreme Court has held that unlike claims for minimum wage and overtime violations, claims for meal and rest period violations do not entitle a prevailing employee to recover statutory attorneys fees. The plaintiff employees in Kirby sued their employer for various labor laws as well as the unfair competition law. Among other things, they claimed that the defendant employer failed to provide rest breaks as required by section 226.7 of the Labor Code. The employees dismissed their rest period claim, and the employer thereafter successfully moved for attorney's fees. In reversing the award, the California Supreme Court held that neither section 1194 nor section 218.5 authorizes an award of attorney's fees to a party that prevails on a section 226.7 claim. 226.7 claims are to be governed by the default American rule that each side must cover its own attorney's fees.

The Kirby decision significantly alters the landscape of wage and hour litigation, by removing from the equation a major incentive for employees to bring such suits.

New Laws Make it Tougher for Employers to Defend Against Age Discrimination Cases.

Effective April 30, 2012, the Equal Employment Opportunity Commission ("EEOC") issued a final rule ("Rule") to amend its regulations concerning disparate-impact Age Discrimination in Employment Act of 1967 ("ADEA") claims and the reasonable factors other than age ("RFOA") defense. In relevant part, the Rule provides as follows: "To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer." 29 C.F.R. § 1625.7(e)(1), emphasis added. "Considerations that are relevant to whether a practice is based on a reasonable factor other than age include, but are not limited to:

  • The extent to which the factor is related to the employer's stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the- criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes; (iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps." 29 C.F.R. § 1625.7(e)(2).

Many believe that the Rule imposes significant burdens on employers by requiring them to meet all of the factors relevant to the RFOA determination.

In its recent decision in Schechner v. KPIX-TV (2012) 3:08-cv-05049-MHP, the 9th Circuit Court of Appeal held that a plaintiff can make out a prima facie case of disparate- treatment age discrimination using statistical evidence, even where that evidence does not account for the defendant's legitimate nondiscriminatory reason for the discharge. Although a plaintiff continues to bear the duty to show that an employer's stated reason for termination is pretextual, his/her statistical evidence need not account for the employer's nondiscriminatory reason for the discharge in order to show a stark pattern of discrimination. An age discrimination plaintiff can make out a prima facie case with little more than statistical evidence, and will more easily meet his or her initial burden. This decision in Schechner also makes it harder for employers to defend against age discrimination claims.

Employers seeking to avoid liability under the ADEA should consider the potential adverse impact on older workers of any facially neutral employment practice they may wish to institute

Brinker Restaurant Corp Puts Chink in Meal and Rest Break Paternalism

In Brinker Restaurant Corp. v. Superior Court (2012) ("Brinker"), the California Supreme Court provided long awaited guidance to employers on issues relating to employee meal and rest periods. The Supreme Court held that while an employer must relieve its employee of all duty for during a meal period, it has no obligation to ensure that the employee does not perform any work during the break! An employer satisfies its obligation to provide a meal period if it:

  • Relieves the employee of all duty;
  • Relinquishes control over his or her activities;
  • Permits him or her a reasonable opportunity to take an uninterrupted 30-minute break;
  • And does not impede or discourage him or her from taking the break.

However, if work continues during an off duty meal period an employer who knows or reasonably should know of this work, can still be liable for straight pay. Patrolling is unnecessary but turning a blind eye to employees working through their meal period can prove to be costly.

The Brinker decision was a victory for employers in another very important way: It effectively put an end to class action lawsuits based on "off the clock claims" in the absence of evidence of a uniform systematic company policy to pressure employees to work off the clock. Without such evidence, "off the clock" claims must be litigated on an individual basis, and each claimant must prove that he or she was required to work off the clock.

Finally, Brinker provided employers with much needed guidance on when meal and rest periods need to be provided. As to rest periods, the Court clarified as follows: Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on. Employers have a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible to do so. In the context of an eight-hour shift, as a general matter, one rest break should fall on either side of the meal break, but this general rule may be altered where shorter or longer shifts and other factors may render such scheduling impracticable. As for meal periods, Labor Code § 512 requires a first meal period no later than the end of an employee's 5th hour of work, and a second meal period no later than the end of an employee's 10th hour of work.

JULY 13, 2010

With the Right Policies in Place, Employees Cannot Have an Expectation of Privacy in Text Messages Sent Through Company-Owned Equipment

In City of Ontario v. Quon (U.S. Supreme Court, June 17, 2010), Jeff Quon was a police officer with the City of Ontario. The City provided Quon and other officers with pagers that were contracted through an independent provider, Arch Wireless. As part of that contract, the pagers permitted a certain number of characters to be sent each month. The City also had in place a Computer Usage Internet and Email Policy stating, "the City reserved the right to monitor and log all network activity, including email and Internet use, with or without notice. Users should have no expectation of privacy when using these resources.” Although the policy did not specifically cite text messages as part of the Policy, the City advised its employees that it would treat the pager text messages in the same manner as it treated emails. This assertion was communicated orally, and thereafter reiterated in a written summary of the meeting during which the statement was made…more

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