Bay Area Employment Lawyer Blog

The California Supreme Court has laid clear, after much confusion, the proper standard by which employers must provide their employees with meal periods, imposing an affirmative burden to completely relieve their employees from duty so that the employees may take full, thirty-minute, uninterrupted meal periods. If the employer fails to meet its obligation to do so, the damaged employee is eligible for a meal period premium of an hour's worth of wages. In addition, the Court has clarified the standard by which meal period and rest break class actions may be certified and laid forth the appropriate standard for the timing of meal and rest periods.

In Brinker, the Court points out that, if an employee works five or more hours in a shift, the employer must do one of three things: (1) afford the employee an off duty meal period; (2) reach a voluntary agreement with an employee on a meal period waiver if one hour or less will end the shift; or (3) obtain written agreement to an on-duty meal period if circumstances permit. If it does none of the three, it is liable for premium pay.

In addition, the Court makes it clear that employers may not skirt their obligations, emphasizing that "an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks." The only steps an employer need not take are to "police" breaks and affirmatively ensure that no work is done.

With respect to class certification, the Court has put an abrupt halt to the disturbing trend of trial courts reaching the merits of a case at the class certification stage, before the parties have even had the opportunity to fully flesh out the evidence in a case. It clarified that a court may only look at the legal merits of a case in limited circumstances, and it reaffirmed the appropriateness of class actions in this legal area.

Lastly, the Court clarified the timing requirements for provision of meal periods, namely, that the first meal period be provided after no more than five hours of work and, for those employees who work a shift of ten hours or more, a second meal period be provided after no more than ten hours of work.

In sum, the Court clarified employees' right to a meal period, protected class actions as a way of vindicating this right, and ensured that employers do not delay meal periods until too late in a shift.

Darin Ranahan
May 9, 2012

I'm not so sure why so much attention has been paid to Sullivan v. Oracle, other than the case has been up and down and all around the court system. See, e.g., Sullivan v. Oracle, 51 Cal.4th 1191 (2011); Sullivan v. Oracle, 662 F.3d 1265 (9th Cir. 2011). The recent holdings (by the Ninth Circuit and California Supreme Court) that - if you work in the great State of California - you are entitled to the protections of California law including overtime and the prohibition against unfair business practices, seems rather ho-hum when you think about it.

I'm not sure what Oracle was thinking when it invited employees from other states to enjoy the sunshine in California, but then left them out in the cold when it came to the basic rights of our overtime law while working on our turf. If the courts permitted that type of conduct, wouldn't we just be encouraging employers to import cheap labor from Montana and Utah to do our work here in California? Talk about creating sweatshops right here in the golden state.

Let's look at Oracle's bold practices and inability to learn a lesson. Year after year, Oracle hired "instructors" to train customers on its products. Some of these instructors lived and worked in California; some lived and worked in other states; and some lived in other states but worked part of the time in California. Oracle classified these employees as "teachers," to make sure that these folks were exempt from overtime laws. Voila -employees worked overtime for no extra pay.

However, the employees had a better idea. They filed a class action and demanded overtime. Consequently, Oracle saw a bit of the light, and started paying its California instructors overtime under California law. Then, Oracle saw a bit more of the light, and started paying its instructors of other states overtime under federal law (the Fair Labor Standards Act, or "FLSA")for their time spent working in states other than California. Oracle held fast on its position for paying employees from other states overtime for their time spent working in California: no overtime for this! Non-California residents thus sued for the time they spent working in California, claiming they were entitled to the protection of California law while working in California, even if they were non-residents.

What did Oracle gain for holding out on this last issue? Hopefully a good lesson that it should have settled all its claims earlier on, rather than engaging in a torturous route through the entire court system including the California Supreme Court and the federal district and appeals court.

Both the California Supreme Court, in Sullivan v. Oracle, 51 Cal.4th 1191 (2011), and the Ninth Circuit, in Sullivan v. Oracle, 662 F.3d 1265 (9th Cir. 2011), ruled for the employees. They held that California law protects employees working in California regardless of the employees' residences in other states, and that this included the protection of California's Unfair Business Practices Act, Ca. B & P. Section 17200 et seq.

This case demonstrates that litigating a simple issue to death is not always the wisest idea!

Jody LeWitter

April 4, 2012

On January 3, 2012, the National Labor Relations Board ("NLRB") ruled that an employer cannot prohibit its employees from vindicating their rights through a class action. D.R. Horton, 357 NLRB No. 184 (2012).

Employer D.R. Horton required that its employees enter into an arbitration agreement as a condition of employment. The agreement not only mandated that employees resolve their disputes with their employer through the arbitration process, but that they do so on an individual basis, directly banishing class actions of any kind or nature, with one swoop of the pen.

An employee of D.R. Horton claimed that D.R. misclassified its employees as exempt under the Fair Labor Standards Act ("FLSA") and sought to right this wrong through a class action. When D.R. Horton objected to the class action on the basis of its mandatory arbitration agreement, the employee filed an unfair labor practice charge with the NLRB, claiming that D.R. Horton's agreement violated employees' right to engage in concerted action pursuant to Section 7 of the National Labor Relations Act ("NLRA"). D.R. Horton responded that the Federal Arbitration Act's ("FAA") protection of the arbitration process basically trumped the NLRA's protection of the employee's right to organize.

The NLRB struck a blow for the employees, holding that an employer cannot bar employees from collective or class actions. This will not be the last word on this important subject. It can be expected that D.R. Horton or other employers will take this matter up in the courts, and claim that AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) and the FAA trump the NLRA. Employers can already generally unfairly muscle employees into giving up their right to a jury trial; to require employees to give up collective actions in addition, is untenable. We hope that the courts side with the NLRB and the employees, and permit employees to show their collective muscle in class actions. Let's also hope that a fair legislative fix is on its way!

Jody LeWitter

March 28, 2012