Douglas Ehlke Douglas Ehlke

Labor Law Developments Making Headlines—Wage and Hour

July 1, 2012

What is an employer’s obligation to provide employees workday meal periods? What if an employee continues to work during his lunch break? Is there a timing requirement to when a meal period must be provided?

The Supreme Court of California recently tackled these issues under California State Law in Brinker Restaurant Corp. v. The Supreme Court of San Diego County and Adam Hohnbaum, California wage and hour restaurant-industry orders obligate employers to afford their non-exempt employees meal and rest periods throughout the workday. One section prohibits an employer from requiring an employee “to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission” and requires that employers who violate these requirements must pay premium (overtime) wages. The law’s purpose is to guarantee to employees wage and hour protection, including meal and rest periods intended to ameliorate the consequences of long hours.

Defendants Brinker Restaurant Corporation, Brinker International, Inc. and Brinker International Payroll Company, L.P. (collectively Brinker) own and operate restaurants throughout California, including Chili’s Grill & Bar and Maggiano’s Little Italy.

In 2002, the Division of Labor Standards Enforcement (DLSE) launched an investigation into whether Brinker was complying with its obligations to provide rest and meal breaks, maintain proper records and pay premium wages in the event required breaks were not provided. The DLSE filed suit and eventually settled in exchange for Brinker’s payment of $10 million to redress injuries suffered by employees between 1999 and 2001, and the stipulation to a court-ordered injunction to ensure compliance with meal- and rest-break laws. In connection with the settlement, Brinker disclaimed all liability.

In the aftermath of the DLSE suit, plaintiff (Hohnbaum) filed this class-action lawsuit seeking to represent the cooks, stewards, buspersons, wait staff, host staff and other hourly employees of Brinker’s restaurants. The complaint: Brinker failed to provide employees rest breaks, or premium wages in lieu of rest breaks, due them under law. The second cause of action claimed that Brinker failed to provide its employees the meal breaks, or premium wages in lieu of meal breaks, required by law.

In the course of litigation, two distinct theories emerged underlying the meal-break claim:

1) That allegedly Brinker provided employees fewer meal periods than required; and

2) That Brinker sometimes required “early lunching,” a single meal period soon after the beginning of a work shift followed by 6, 7, 8 or more hours without an additional meal break.

Finally, plaintiffs contended that Brinker required employees to work off-the-clock during meal periods, and engaged in time shaving—unlawfully altering employee time records to misreport the amount of time worked and break time taken.

OSHA Repeat Citations

The lookback period OSHA now uses for similar federal or state OSHA citations upon which to base repeat citations upon (for penalties up to $70,000.00) is now 5 yr. (raised from 3 yr).

OSHA Compliance Conflict with State Laws

In September 2011, the Texas legislature passed Senate Bill 321, allowing concealed-handgun licensees and other lawful gun owners to carry handguns, firearms and live ammunition to work when kept locked inside a vehicle in the employer’s/company’s parking lot. Indiana has a similar parking-lot law, as well as a related statute barring employers from inquiring into an employee’s gun status. How do these state laws impact employer compliance with OSHA’s safe workplace General Duty obligations for providing a workplace “free from recognized hazards?”

This is a potential thorny compliance conflict for employers in the few states having such gun laws. For employers in these two states, a review of workplace-violence policies and firearms prohibitions on company property is in order. Blanket prohibitions banning all firearms on company property or premises may have to be revised to allow an exception when authorized by law, or to mimic the statutory-protected parking-lot laws. MF

Technologies: Bending


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