2 Employment Law Strategist
EDITOR-IN-CHIEF Stephanie McEvily EDITORIAL 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 WOODINCHAVEYDay Pitney LLPHartford, CT CHRISTOPHER DDURCHANDuane Morris LLPPhiladelphiaKARLA GROSSENBACHER Seyfarth Shaw LLPWashington, DCBARRY A HARTSTEINMorgan, Lewis & Bockius LLPChicagoSHERRARD LEE (BUTCH)HAYES II Fulbright & Jaworski LLPAustin, TX GARY KESSLER Kessler & CollinsDallasSTACEY McKEE KNIGHTKatten Muchin Rosenman LLPLos AngelesSHIRLEY O LERNERLittler Mendelson, PCMinneapolis WILLIAM C MARTUCCIShook Hardy & Bacon, LLPWashington, DCKEVIN C McCORMICKWhiteford, Taylor & Preston LLPBaltimoreNEIL McKITTRICKOgletree DeakinsBostonRALPH MORRIS Schiff Hardin LLPChicago WAYNE N OUTTENOutten & Golden LLPNew YorkPATRICIA ANDERSONPRYORTaft, Stettinius & Hollister LLPCincinnati, OHMARK N REINHARZBond, Shoeneck & King, PLLCGarden City, NY ROSANNA SATTLERPosternak Blankstein & Lund LLPBostonJOHN D SHYER Latham & Watkins LLPNew YorkSCOTT T SILVERMANAkerman Senterfitt Tampa, FL WILLIAM J WORTELBryan 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@almcomCirculation e-mail: customercare@almcomReprints: wwwalmreprintscomPOSTMASTER: Send address changes to: ALM120 Broadway, New York, NY 10271
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Contrary to the holding in
, an employer that erects barriersto an employee’s access to breaks isoreclosed rom resting on the gen-eral proposition that an employer cannot be saddled with an arma-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” arma-tively and “[t]he onus is on the em-ployer to clearly communicate theauthorization and permission to itsemployees.”
, 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 employeesrom taking … breaks.”
See Brownv. Fed. Express Corp.
, 2008 U.S. Dist.LEXIS 17125, 17-18 (C.D. Cal. 2008).Signicantly, ederal district courtopinions employing
analy-sis have uniormly concluded thatan employer will necessarily violatethe applicable Wage Orders by con-structing impediments to taking “o-duty” meal periods.
See, e.g., Perez v.Saety-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 employeesrom 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, eectively 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 toorego 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 meaningul one or it to countas a meal break ‘provided’ by the em-ployer, the Court agrees … .”). Thus, where an employer employsuniorm 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 codied exception to therequirement that “o-duty” breaks be given — is an armative deensethat may be utilized only i three el-ements are established by the em-ployer.
, 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.”);
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
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