Page 72 - MetalForming July 2012
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  You and The Law
By Douglas B.M. Ehlke
Labor Law Developments
Making Headlines—Wage and Hour
What is an employer’s obligation to provide employ- ees 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 pro- vided?
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 man- dated by an applicable order of the Industrial Welfare Com- mission” 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 Com- pany, L.P. (collectively Brinker) own and operate restaurants throughout California, including Chili’s Grill & Bar and Mag- giano’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 dis- claimed all liability.
In the aftermath of the DLSE suit, plaintiff (Hohnbaum)
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
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 employ- ees 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 sin- gle meal period soon after the beginning of a work shift fol- lowed by 6, 7, 8 or more hours without an additional meal break.
Finally, plaintiffs contended that Brinker required employ- ees 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 law- ful gun owners to carry handguns, firearms and live ammu- nition 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 employ- ers 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 employ- ers 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 prop- erty or premises may have to be revised to allow an exception when authorized by law, or to mimic the statutory-protect- ed parking-lot laws. MF
MetalForming/July 2012

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