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May Meal and Rest Period Claims Be Certified in a Post-Brinker World?

May Meal and Rest Period Claims Be Certified in a Post-Brinker World?

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Published by www.BaileyDaily.com
Employment Law
Managing the Compensable Workday in a New Electronic World
By Christopher A. Parlo and Michael J. Puma The Fair Labor Standards Act (FLSA) requires employers to pay their employees a minimum wage for all hours worked in a workweek and to pay overtime to those nonexempt (i.e., hourly) employees in any workweek that exceeds 40 hours. All time from an employee’s first principal activity of the day until the last principal activity, excluding meal periods, is compensable. By Matt C. B
Employment Law
Managing the Compensable Workday in a New Electronic World
By Christopher A. Parlo and Michael J. Puma The Fair Labor Standards Act (FLSA) requires employers to pay their employees a minimum wage for all hours worked in a workweek and to pay overtime to those nonexempt (i.e., hourly) employees in any workweek that exceeds 40 hours. All time from an employee’s first principal activity of the day until the last principal activity, excluding meal periods, is compensable. By Matt C. B

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By Matt C. Bailey 
 Brinker Restaurant Corp. v. Superior Court 
, 80 Cal. Rptr. 3d 781, 800(2008),
review granted and opinion superseded 
in 85 Cal. Rptr. 3d 688 (Oct.22, 2008), Caliornia’s Fourth District Court o Appeal substantively alteredthe wage and hour landscape through its conclusion that Caliornia meal andrest period regulations only impose a passive obligation on employers to make breaks available. This legal nding, according to the
court, renders mealand rest period claims hopelessly uncertiable as a class action, as the employ-ee’s option to waive a meal or rest period requires a case-by-case inquiry intothe reason each individual break was not taken. While the
decision iscurrently pending review by the Caliornia Supreme Court,
analysis isnot the be-all end-all when it comes to class adjudication o meal and rest periodclaims. Regardless o the outcome in
, numerous meal and rest breaktheories will continue to be suitable or class adjudication.
Perhaps one o the most eective theories permitting class adjudication o meal and rest period claims involves an employer’s imposition o a common pol-icy and/or practice that uniormly prevents employees rom accessing meal andrest periods. Such violations predicated upon a common barrier are antitheticalo 
, as such violations involve: 1) a common policy ideal or classwide ad- judication; 2) a lack o employee choice that eectively negates the “individual-ized” waiver deense; and 3) the potential or employer liability, notwithstandingthe existence o a acially lawul meal and/or rest period policy.
See e.g., Bufl v. Dollar Financial Group, Inc.
, 162 Cal. App. 4th 1193, 1206 (2008) (“no one dis-putes that the wage order was posted or that there were designated areas to takea break — these matter naught i a single-shit sole employee or sole employee working with a trainee is not able to take an o-duty break.”).
 In This Issue 
and Meal andRest Breaks 1What Is a CompensableWorkday? 1Guns in theWorkplace         3Movers & Shakers 8Verdicts 8
By Christopher A. Parlo and Michael J. Puma
 The Fair Labor Standards Act(FLSA) requires employers topay their employees a minimum wage or all hours worked in a workweek and to pay overtimeto those nonexempt (
, hour-ly) employees in any workweekthat exceeds 40 hours. All timerom an employee’s rst princi-pal activity o the day until thelast principal activity, excludingmeal periods, is compensable.
 When Congress passed theFLSA in 1938, measuring (andcontrolling) the length o an em-ployee’s workday was relatively easy. An employee showed up to work, punched a time-clock (or signed a log sheet, or ollowedsome similar method), recordedhis or her departure rom the worksite in the same manner asused on arrival, and was paidor the intervening time period,excluding only the generally preset lunch period. The routineseemed simple enough.Since that time, however,the connes o both the work-day and the workplace havechanged. Under the FLSA, em-ployees are entitled to be paid beginning only with their rst“principal activity,” that is, therst activity that the employee ishired to perorm, and to be paidonly through their last principal
 Volume 17, Number 10 • February 2010
Employment Law
Class Litigation o Meal and Rest Period Claims
 May Meal and Rest Period Claims Be Certifed in a Post-
continued on page 2 
Managing theCompensable Workday in a New Electronic World 
continued on page 5 
2 Employment Law Strategist
February 2010
EDITOR-IN-CHIEF Stephanie McEvilEDITORIAL DIRECTOR Wendy Kaplan StavinohaMARKETING DIRECTOR Jeannine Kennedy GRAPHIC DESIGNERLouis F BartellaBOARD OF EDITORSGIL A ABRAMSON Hogan & Hartson LLPBaltimoreDAVID S BAFFA Seyfarth Shaw LLPChicagoPHILIP M BERKOWITZ Nixon Peabody LLPNew York VICTORIA WOODINCHAVEYDay Pitney LLPHartford, CT CHRISTOPHER DDURCHANDuane Morris LLPPhiladelphiaKARLA GROSSENBACHER Seyfarth Shaw LLPWashington, DCBARRY A HARTSTEINMorgan, Lewis & Bockius LLPChicagoSHERRARD LEE (BUTCH)HAYES II Fulbright & Jaworski LLPAustin, TX GARY KESSLER Kessler & CollinsDallasSTACEY McKEE KNIGHTKatten Muchin Rosenman LLPLos AngelesSHIRLEY O LERNERLittler Mendelson, PCMinneapolis WILLIAM C MARTUCCIShook Hardy & Bacon, LLPWashington, DCKEVIN C McCORMICKWhiteford, Taylor & Preston LLPBaltimoreNEIL McKITTRICKOgletree DeakinsBostonRALPH MORRIS Schiff Hardin LLPChicago WAYNE N OUTTENOutten & Golden LLPNew YorkPATRICIA ANDERSONPRYORTaft, Stettinius & Hollister LLPCincinnati, OHMARK N REINHARZBond, Shoeneck & King, PLLCGarden City, NY ROSANNA SATTLERPosternak Blankstein & Lund LLPBostonJOHN DSHYER Latham & Watkins LLPNew YorkSCOTT TSILVERMANAkerman SenterfitTampa, FL WILLIAM J WORTELBryan Cave LLPChicagoEmployment Law Strategist® (ISSN 1069-3741) is publishedby Law Journal Newsletters, a division of ALM © 2010 ALM Media,LLC All rights reserved No reproduction of any portion of thisissue is allowed without written permissionfrom the publisher Telephone: (877) 256-2472Editorial e-mail: wampolsk@almcomCirculation e-mail: customercare@almcomReprints: wwwalmreprintscomPOSTMASTER: Send address changes to: ALM120 Broadway, New York, NY 10271
Employment Law
 Published Monthly by:
Law Journal Newsletters1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103 wwwljnonlinecom
Contrary to the holding in
, an employer that erects barriersto an employee’s access to breaks isoreclosed rom resting on the gen-eral proposition that an employer cannot be saddled with an arma-tive obligation to ensure that work-ers are actually relieved o all duty.In such circumstances, the employer is required to “take steps to provideemployees with the opportunity totake the required [] breaks” arma-tively and “[t]he onus is on the em-ployer to clearly communicate theauthorization and permission to itsemployees.”
See Bufl 
, 162 Cal. App.4th at 1200. An employer will be lia- ble where it “simply assumed breaks were taken, despite its institution o policies that prevented employeesrom taking … breaks.”
See Brownv. Fed. Express Corp.
, 2008 U.S. Dist.LEXIS 17125, 17-18 (C.D. Cal. 2008).Signicantly, ederal district courtopinions employing
analy-sis have uniormly concluded thatan employer will necessarily violatethe applicable Wage Orders by con-structing impediments to taking “o-duty” meal periods.
See, e.g., Perez v.Saety-Kleen Sys.
, 253 F.R.D. 508, 514(N.D. Cal. 2008) (“The conclusionthat an employer may not discouragemeal breaks is also consistent withthree other recent cases in whichdistrict courts have interpreted anemployer’s obligation under Sec-tion 512.”);
, 2008 U.S. Dist.LEXIS 17125, 17-18 (reasoning that while an employer is not obligated“to orce employees to take breaks[,]”an employer may be liable where “anemployer simply assumed breaks were taken, despite its institution o policies that prevented employeesrom taking meal breaks.”);
White v. Starbucks Corp
, 497 F. Supp. 2d1080, 1089 (N.D. Cal. 2007) (reason-ing that “
should be read un-der the acts presented by that case” wherein the employer was ound li-able when the employer “knew thatemployees were driving while eatingand did not take steps to address thesituation” and imposed “managementpolicies, eectively deprived the driv-ers o their breaks.”);
 Kenny v. Super-cuts, Inc.
, 252 F.R.D. 641 (N.D. Cal.2008) (reasoning that “the employeemust show that he was orced toorego his meal breaks as opposedto merely showing that he did nottake them regardless o the reason.”);
 Marlo v. UPS 
, 2009 U.S. Dist. LEXIS41948 (C.D. Cal. May 5, 2009) (“Tothe extent
argues that the op-portunity to take a meal break must be a meaningul one or it to countas a meal break ‘provided’ by the em-ployer, the Court agrees … .”). Thus, where an employer employsuniorm policies that commonly im-pede employees’ access to “o-duty” breaks, such policies present com-mon issues that may be litigated asto the class as a whole.
Claims that are predicated uponan improper use o the “on-duty”exemption also provide another ground amenable to class adjudi-cation. An “on-duty” meal break — which is a codied exception to therequirement that “o-duty” breaks be given — is an armative deensethat may be utilized only i three el-ements are established by the em-ployer.
See, e.g.
, 8 CCR 11040(11)(A)(“[a]n ‘on duty’ meal period shall bepermitted only when the nature o the work prevents an employee rom being relieved o all duty and when by written agreement between theparties an on-the-job paid meal pe-riod is agreed to. The written agree-ment shall state that the employeemay, in writing, revoke the agree-ment at any time.”);
 McFarland v.
Matt C. Bailey 
is a senior associate with Los Angeles-based KhorramiPollard & Abir LLP and serves as co-chair o the rm’s Class Action Prac-tice Group. He may be reached atMBailey@kpalawyers.com
continued from page 1continued on page 7 
The publisher of this newsletter is not engaged in rendering legal,accounting, financial, investment advisory or other professional servic-es, and this publication is not meant to constitute legal, accounting, finan-cial, investment advisory or other professional advice. If legal, financial,investment advisory or other professional assistance is required, theservices of a competent professional person should be sought.
February 2010
Employment Law Strategist
www.ljnonline.com/alm?emp 3
By Rosanna Sattler and Nancy J. Puleo
 The idea o employees bring-ing guns to work strikes ear in thehearts and minds o employers ev-erywhere. Workplace violence is ris-ing in the ace o layos, urloughs,and the economic pressures suered by employees. Employers now must balance the duty to maintain a sae workplace with employees’ right to bear arms under the Second Amend-ment o the Constitution o the Unit-ed States, their rights under state con-stitutions, and laws allowing guns at work — which is a new and growingtrend in employment legislation.
Section 654(a)(1) o the FederalOccupational Health and Saety Act(the “Act”), also reerred to as the“general duty” clause, mandates thateach employer “shall urnish to eacho its employees employment and aplace o employment which are reerom recognized hazards that arecausing or are likely to cause deathor serious harm to his employees.” While the United States Occupa-tional Saety and Health Administra-tion (“OSHA”) has issued voluntary guidelines and recommendations or employers seeking to reduce the risko workplace violence, it has not pro-mulgated any mandatory standards.In February 2009, the Tenth Cir-cuit Court o Appeals considered theissue o preemption under the Act,in a case brought by a group o em-ployers challenging Oklahoma’s re-arm laws, which restricted employ-ers rom banning guns in workplaceparking lots.
See Ramsey Winch, Inc.v. Henry 
, 555 F.3d 1199 (10th Cir.2009). The employers argued thatOklahoma’s law violated the work-place saety guidelines issued by OSHA. The court unanimously ruledthat Oklahoma employees have theconstitutional right to keep guns intheir vehicles at work.In connection with the
 Ramsey Winch
case, in 2006, an Oklahomalawmaker wrote to OSHA to inquire whether guns in the workplace werea recognized hazard. The Agency an-swered the lawmaker’s question by stating: “Gun-related violence is nota recognized occupational hazard inthe industry as a whole.” The TenthCircuit held that OSHA “is awareo the controversy surroundingrearms in the workplace and hasconsciously decided not to adopt astandard.” The court ound that the“Act is not meant to interere withstates’ exercise o police powers toprotect their citizens,” and discussedOSHA’s reluctance to regulate, andcourts’ reluctance to nd preemp-tion, in areas dealing more generally  with social policy and crime preven-tion, rather than specic workplace-related conditions and hazards. The court viewed the Oklahomalaw as an example o general regu-lation under the state’s police pow-er. In the absence o clear congres-sional intent to preempt state law inthat area, the court did not nd pre-emption under the Act’s general duty clause. Similarly, in 2008, a FloridaDistrict Court rejected an OSHA pre-emption challenge to Florida’s gunlaw.
See Florida Retail Federation, Inc. v. Attorney General o Florida
,576 F. Supp.2d 1301 (N.D. Fl. 2008).Should OSHA change its mind, wecan expect urther challenges tostate laws allowing gun-toting em-ployees at work.
In 2008, the United States Su-preme Court addressed rights under the Second Amendment in
 District o Columbia v. Heller 
, in connection with a local law banning the posses-sion o handguns and requiring allother rearms to be kept at home,disassembled or trigger-locked.
See  District o Columbia v. Heller 
, 128S.Ct. 2783 (2008). The SupremeCourt held that the Second Amend-ment protects an individual’s rightto bear arms. It then struck downthe District o Columbia law be-cause it violated that right. How-ever, the Court noted that the rightsecured by the Second Amendmentis not unlimited. The Court recog-nized the validity o “longstandingprohibitions” on the possession o rearms by elons and the mentally ill. It also recognized laws prohib-iting rearms in “sensitive places,”such as schools and government buildings, as well as laws imposingconditions and qualications on thecommercial sale o rearms. The Supreme Court’s decision in
leaves a lot o questions unan-swered. For example, the Court de-clined to establish a standard against which gun control laws will be mea-sured; it did not address whether theSecond Amendment aects the lawso the individual states dierently rom those in the ederally controlledterritory o the District o Columbia, whose status is unique; the Court didnot address whether the right to bear arms inside the home or sel-deensealso extends to a person’s car or hisplace o work; and the decision didnot address clearly when saety con-cerns outweigh an individual’s rightto bear arms. In light o the
 decision, it is unclear how the Court will balance employer saety require-ments against an individual’s rightsunder the Second Amendment in theuture.
In May 2009, the Montana Legis-lature passed a law asserting thatguns manuactured and sold inMontana to people who intend tokeep their weapons in Montanaare exempt rom ederal gun reg-istration, background checks, and
 A Right To Bear  Arms in the Ofce?
 A Look at Recent Law Concerning Guns in the Workplace 
continued on page 4 
Rosanna Sattler 
, a member o thisnewsletter’s Board o Editors, is apartner and a member o Posternak,Blankstein and Lund’s ExecutiveCommittee. Her extensive litigationpractice includes business litigation,environmental, employment and in-surance coverage disputes.
Nancy Puleo
is an Associate in the rm’s Em-ployment and Litigation Departments.

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