Litigating California Wage & Hour and Labor Code Class Actions

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eak must be provided during every “rolling” 5-hour block of work time, and thus held that employers can provide meal breaks quite early in the work day. 150 D. Limits on IWC’s Power to Alter Labor Code Meal Period Rules Effective September 19, 2000, before Labor Code Section 226.7 went into effect, the California Legislature amended Labor Code Section 516. As amended, the statute provides that the IWC may adopt or amend Wage Orders with respect to break periods and meal periods “except as provided in Section 512.” On its face, this language would seem to limit the IWC’s authority to adopt or to amend Wage Orders in such a way as to be inconsistent with the specific provisions of Labor Code Section 512. In 2006, in Bearden v. U.S. Borax, Inc., 151 the Second District Court of Appeal held that Section 516 invalidated provisions of IWC Wage Order No. 16 on the ground that the Wage Order was inconsistent with specific meal period regulations within Labor Code Section 512. By way of background, Section 512 specifies these regulations on meal periods: An employer may not employ an employee for a work period of more than five hours per day without providing a meal period of not less than thirty minutes, except the meal period can be waived by mutual consent if the total work period is no more than six hours [§ 512(a)]. The IWC is empowered to adopt a Wage Order permitting a meal period to commence after six hours of work [§ 512(b)]. The general rule in Section 512(a) does not apply to certain employees in the wholesale baking industry [§ 512(c)]. The general rule in Section 512(a) does not apply to certain employees in the broadcasting industry covered by a collective bargaining agreement. Effective January 1, 2001, the IWC adopted Wage Order 16-2001 covering employees in the construction, drilling, logging, and mining industries. Unlike other Wage Orders, Wage Order 16-2001 includes a collective bargaining exemption to the meal period requirements, which provides that meal period requirements do not apply to employees covered by a collective bargaining agreement that provides for wages, hours of work and working conditions, a regular pay rate at least 30 percent above minimum wage, and premium pay 150 151 Id. at *23. 128 Cal. App. 4th 429 (2006). Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 38
for all overtime hours worked. The defendants argued that this provision exempted them from the normal requirement to provide meal periods. The Bearden court held that this collective bargaining exemption from meal period requirements was invalid because it created a new exemption not recognized in Section 512. 152 The court noted that Section 512 contains specific exemptions from the normal meal period requirement—i.e., when an employee working no more than six hours in a day waives the meal period and under other specified conditions for employees working in the wholesale baking and broadcasting industries. 153 The court reasoned that where the Legislature has set forth specific exemptions in a statute, those exemptions are generally assumed to be exclusive. Proceeding on that premise, the court reasoned that Section 516 forbade the IWC to adopt exemptions beyond those set forth in Section 512. 154 Despite the invalidity of the collective bargaining exemption, the court held that the employer could not be held liable for any penalties because Section 226.7 allows for such penalties only when the employer violates an IWC Wage Order, and U.S. Borax had complied with Wage Order 16-2001. 155 The Bearden decision has implications beyond the IWC’s right to adopt a collective bargaining exemption to the meal period requirements. A larger issue for California employers is whether the IWC had the right to adopt a standard that a meal period violation occurs whenever an employer “employs any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes.” That standard, which the DLSE had originally interpreted as requiring that employees actually take a meal period within the first five hours of their shifts, arguably contradicts the meal period rule in Section 512, which requires only that an employer “provide” a meal period to an employee who works a total work period in a day of more than five hours. Employers must await further developments for courts to resolve this issue definitively. VI. Tip-pooling Labor Code Section 351 makes it unlawful for an “employer or agent” to “collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.” In the past, this statute led to two distinct types of class actions on behalf of employees who claim their tips were unlawfully taken. The first type of action alleged that the employees unlawfully were required to share tips with co-workers for whom the patrons did not leave the tips. The second type of action 152 153 154 155 Id. at 486-88. Id. at 487. Id. at 487-88. Id. at 493. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 39
Page 1 and 2: Litigating California Wage & Hour a
Page 3 and 4: Table of Contents I. Introduction a
Page 5 and 6: A. Disclosure of Class Member Names
Page 7 and 8: associated statutory penalties. 1 T
Page 9 and 10: who does not meet the threshold com
Page 11 and 12: exempt work is of a kind which in e
Page 13 and 14: 3) The employee performs his or her
Page 15 and 16: decisions have concluded that under
Page 17 and 18: Bell court to look beyond the Wage
Page 19 and 20: place of business, would that quali
Page 21 and 22: IWC had the authority to promulgate
Page 23 and 24: stores” by providing them a porti
Page 25 and 26: declare such a system illegal witho
Page 27 and 28: employers should be able to defend
Page 29 and 30: waive the right to reimbursement, s
Page 31 and 32: Due to the ambiguity in the meaning
Page 33 and 34: For each workday the employer fails
Page 35 and 36: Arguably, no additional $100-per-pa
Page 37 and 38: permitted” the employee to work t
Page 39: federal decisions also held that an
Page 43 and 44: much broader, such as the court’s
Page 45 and 46: In the appeal of Chau, the appellat
Page 47 and 48: years before the lawsuit, or for an
Page 49 and 50: imposition of penalties, 194 routin
Page 51 and 52: In one such class action, Elliot v.
Page 53 and 54: First, there has been a substantial
Page 55 and 56: Recent court decisions have begun t
Page 57 and 58: of her hours was paid at a rate of
Page 59 and 60: the limitations period for a penalt
Page 61 and 62: passage, then the employee could st
Page 63 and 64: all, but rather simply to proceed w
Page 65 and 66: Shortly thereafter, another Divisio
Page 67 and 68: and the ability to bring a collecti
Page 69 and 70: XIII. Class Action Fairness Act of
Page 71 and 72: the plaintiff is “master of her c
Page 73 and 74: alleged conduct or any related cond
Page 75 and 76: Initially, the decisions were split
Page 77 and 78: XIV. Class Certification A. General
Page 79 and 80: expectations and the realistic requ
Page 81 and 82: In the immediate wake of Sav-On, th
Page 83 and 84: Similarly, employers may argue that
Page 85 and 86: A 5 to 4 ruling reversed the Ninth
Page 87 and 88: facility to the next, or variations
Page 89 and 90: employer’s defense arsenal, and t
Page 91 and 92:
In reaching this conclusion, the Co
Page 93 and 94:
party who seeks the same relief, pr
Page 95 and 96:
is to be so maintained.” This det
Page 97 and 98:
speech. 429 Therefore, the court he
Page 99 and 100:
Puerto, or Crab Addison cases would
Page 101 and 102:
epresentative. That question was an
Page 103 and 104:
CashCall to disclose the identities
Page 105 and 106:
nothing but still are bound by the
Page 107 and 108:
Initially, there appeared to be a v
Page 109 and 110:
the case. As any one of these class
Page 111 and 112:
have any great impact on class sett
Page 113 and 114:
plaintiff’s attorney and putative
Page 115 and 116:
the California Supreme Court issued
Page 117 and 118:
While California courts have essent
Page 119 and 120:
The plaintiffs attempted to justify
Page 121:
Breadth. Depth. Results. www.seyfar
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