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Employment Law

Strategist ®

Volume 17, Number 10 • February 2010

Managing the Class Litigation of Meal and Rest Period Claims

Compensable May Meal and Rest Period Claims Be Certified in a Post-Brinker World?
Workday in a New By Matt C. Bailey

Electronic World n Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781, 800
By Christopher A. Parlo and (2008), review granted and opinion superseded in 85 Cal. Rptr. 3d 688 (Oct.
Michael J. Puma 22, 2008), California’s Fourth District Court of Appeal substantively altered
the wage and hour landscape through its conclusion that California meal and
The Fair Labor Standards Act rest period regulations only impose a passive obligation on employers to make
(FLSA) requires employers to breaks available. This legal finding, according to the Brinker court, renders meal
pay their employees a minimum and rest period claims hopelessly uncertifiable as a class action, as the employ-
wage for all hours worked in a ee’s option to waive a meal or rest period requires a case-by-case inquiry into
workweek and to pay overtime the reason each individual break was not taken. While the Brinker decision is
to those nonexempt (i.e., hour- currently pending review by the California Supreme Court, Brinker’s analysis is
ly) employees in any workweek not the be-all end-all when it comes to class adjudication of meal and rest period
that exceeds 40 hours. All time claims. Regardless of the outcome in Brinker, numerous meal and rest break
from an employee’s first princi- theories will continue to be suitable for class adjudication.
pal activity of the day until the Claims Involving Uniform Barriers to Breaks
last principal activity, excluding Perhaps one of the most effective theories permitting class adjudication of
meal periods, is compensable. meal and rest period claims involves an employer’s imposition of a common pol-
History icy and/or practice that uniformly prevents employees from accessing meal and
When Congress passed the rest periods. Such violations predicated upon a common barrier are antithetical
FLSA in 1938, measuring (and of Brinker, as such violations involve: 1) a common policy ideal for classwide ad-
controlling) the length of an em- judication; 2) a lack of employee choice that effectively negates the “individual-
ployee’s workday was relatively ized” waiver defense; and 3) the potential for employer liability, notwithstanding
easy. An employee showed up to the existence of a facially lawful meal and/or rest period policy. See e.g., Bufil v.
work, punched a time-clock (or Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1206 (2008) (“no one dis-
signed a log sheet, or followed
putes that the wage order was posted or that there were designated areas to take
some similar method), recorded
a break — these matter naught if a single-shift sole employee or sole employee
his or her departure from the
working with a trainee is not able to take an off-duty break.”).
worksite in the same manner as
continued on page 2
used on arrival, and was paid
for the intervening time period,
excluding only the generally
preset lunch period. The routine
In This Issue
seemed simple enough. Brinker and Meal and
Since that time, however, Rest Breaks. . . . . . . . . 1
the confines of both the work- What Is a Compensable
day and the workplace have Workday?. . . . . . . . . . 1
changed. Under the FLSA, em- Guns in the
ployees are entitled to be paid Workplace. . . . . . . . . 3
beginning only with their first Movers & Shakers. . . . 8
“principal activity,” that is, the Verdicts . . . . . . . . . . . 8
first activity that the employee is
hired to perform, and to be paid
only through their last principal
continued on page 5
Brinker ing that “Cicairos should be read un-

continued from page 1

der the facts presented by that case”
wherein the employer was found li-
Employment Law
Contrary to the holding in Brink-
able when the employer “knew that Strategist ®

employees were driving while eating

er, an employer that erects barriers and did not take steps to address the EDITOR-IN-CHIEF . . . . . . . . . . . . . Stephanie McEvily
EDITORIAL DIRECTOR . . . . . . . . . Wendy Kaplan Stavinoha
to an employee’s access to breaks is situation” and imposed “management MARKETING DIRECTOR . . . . . . . . Jeannine Kennedy
foreclosed from resting on the gen- policies, effectively deprived the driv- GRAPHIC DESIGNER . . . . . . . . . . Louis F. Bartella
eral proposition that an employer ers of their breaks.”); Kenny v. Super- BOARD OF EDITORS
cannot be saddled with an affirma- cuts, Inc., 252 F.R.D. 641 (N.D. Cal. GIL A. ABRAMSON . . . . . . . . . Hogan & Hartson LLP
tive obligation to ensure that work- 2008) (reasoning that “the employee
DAVID S. BAFFA . . . . . . . . . . . Seyfarth Shaw LLP
ers are actually relieved of all duty. must show that he was forced to Chicago
In such circumstances, the employer forego his meal breaks as opposed PHILIP M. BERKOWITZ . . . . . Nixon Peabody LLP
is required to “take steps to provide to merely showing that he did not
New York
employees with the opportunity to take them regardless of the reason.”); CHAVEY . . . . . . . . . . . . . . . . . Day Pitney LLP
take the required [] breaks” affirma- Marlo v. UPS, 2009 U.S. Dist. LEXIS Hartford, CT
tively and “[t]he onus is on the em- 41948 (C.D. Cal. May 5, 2009) (“To DURCHAN . . . . . . . . . . . . . . . Duane Morris LLP
ployer to clearly communicate the the extent Marlo argues that the op- Philadelphia
authorization and permission to its portunity to take a meal break must KARLA
GROSSENBACHER . . . . . . . . . Seyfarth Shaw LLP
employees.” See Bufil, 162 Cal. App. be a meaningful one for it to count Washington, DC
4th at 1200. An employer will be lia- as a meal break ‘provided’ by the em- BARRY A. HARTSTEIN . . . . . . Morgan, Lewis & Bockius LLP
ble where it “simply assumed breaks ployer, the Court agrees … .”).
were taken, despite its institution of Thus, where an employer employs HAYES II . . . . . . . . . . . . . . . . . Fulbright & Jaworski L.L.P.
policies that prevented employees uniform policies that commonly im- Austin, TX
GARY KESSLER . . . . . . . . . . . . Kessler & Collins
from taking … breaks.” See Brown pede employees’ access to “off-duty” Dallas
v. Fed. Express Corp., 2008 U.S. Dist. breaks, such policies present com- STACEY McKEE KNIGHT . . . . Katten Muchin Rosenman LLP
LEXIS 17125, 17-18 (C.D. Cal. 2008). mon issues that may be litigated as Los Angeles
SHIRLEY O. LERNER . . . . . . . Littler Mendelson, PC
Significantly, federal district court to the class as a whole. Minneapolis
opinions employing Brinker’s analy-
Claims Involving the ‘On-Duty’ WILLIAM C. MARTUCCI . . . . Shook Hardy & Bacon, L.L.P.
sis have uniformly concluded that Washington, DC

an employer will necessarily violate Meal Break Exemption KEVIN C. McCORMICK . . . . . Whiteford, Taylor & Preston L.L.P.
the applicable Wage Orders by con- Claims that are predicated upon
NEIL McKITTRICK . . . . . . . . . Ogletree Deakins
structing impediments to taking “off- an improper use of the “on-duty” Boston

duty” meal periods. See, e.g., Perez v. exemption also provide another RALPH MORRIS . . . . . . . . . . . Schiff Hardin LLP
Safety-Kleen Sys., 253 F.R.D. 508, 514 ground amenable to class adjudi- WAYNE N. OUTTEN . . . . . . . . Outten & Golden LLP

(N.D. Cal. 2008) (“The conclusion cation. An “on-duty” meal break — New York

that an employer may not discourage which is a codified exception to the PATRICIA ANDERSON
PRYOR . . . . . . . . . . . . . . . . . . Taft, Stettinius & Hollister LLP
meal breaks is also consistent with requirement that “off-duty” breaks Cincinnati, OH

three other recent cases in which be given — is an affirmative defense MARK N. REINHARZ . . . . . . . Bond, Shoeneck & King, PLLC
Garden City, NY
district courts have interpreted an that may be utilized only if three el-
ROSANNA SATTLER . . . . . . . . Posternak Blankstein & Lund LLP
employer’s obligation under Sec- ements are established by the em- Boston

tion 512.”); Brown, 2008 U.S. Dist. ployer. See, e.g., 8 CCR 11040(11)(A) JOHN D. SHYER . . . . . . . . . . . Latham & Watkins LLP
New York
LEXIS 17125, 17-18 (reasoning that (“[a]n ‘on duty’ meal period shall be SCOTT T. SILVERMAN . . . . . . Akerman Senterfitt

while an employer is not obligated permitted only when the nature of Tampa, FL

“to force employees to take breaks[,]” the work prevents an employee from WILLIAM J. WORTEL . . . . . . . Bryan Cave LLP
an employer may be liable where “an being relieved of all duty and when
employer simply assumed breaks by written agreement between the Employment Law Strategist® (ISSN 1069-3741) is published
by Law Journal Newsletters, a division of ALM. © 2010 ALM Media,

were taken, despite its institution of parties an on-the-job paid meal pe- LLC. All rights reserved. No reproduction of any portion of this
issue is allowed without written permission
policies that prevented employees riod is agreed to. The written agree- from the publisher. Telephone: (877) 256-2472

from taking meal breaks.”); White ment shall state that the employee Editorial e-mail:
Circulation e-mail:

v. Starbucks Corp, 497 F. Supp. 2d may, in writing, revoke the agree- Reprints:

1080, 1089 (N.D. Cal. 2007) (reason- ment at any time.”); McFarland v. POSTMASTER: Send address changes to:
continued on page 7 120 Broadway, New York, NY 10271

Matt C. Bailey is a senior associate

Published Monthly by:
with Los Angeles-based Khorrami The publisher of this newsletter is not engaged in rendering legal, Law Journal Newsletters
accounting, financial, investment advisory or other professional servic- 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103
Pollard & Abir LLP and serves as co- es, and this publication is not meant to constitute legal, accounting, finan-
chair of the firm’s Class Action Prac- cial, investment advisory or other professional advice. If legal, financial,
tice Group. He may be reached at investment advisory or other professional assistance is required, the
services of a competent professional person should be sought.
2 Employment Law Strategist ❖ February 2010
A Right To Bear issue of preemption under the Act,
in a case brought by a group of em-
the Second Amendment in District
of Columbia v. Heller, in connection
Arms in the Office? ployers challenging Oklahoma’s fire- with a local law banning the posses-
arm laws, which restricted employ- sion of handguns and requiring all
A Look at Recent Law
ers from banning guns in workplace other firearms to be kept at home,
Concerning Guns in the
parking lots. See Ramsey Winch, Inc. disassembled or trigger-locked. See
Workplace v. Henry, 555 F.3d 1199 (10th Cir. District of Columbia v. Heller, 128
By Rosanna Sattler and 2009). The employers argued that S.Ct. 2783 (2008). The Supreme
Nancy J. Puleo Oklahoma’s law violated the work- Court held that the Second Amend-
place safety guidelines issued by ment protects an individual’s right
The idea of employees bring- OSHA. The court unanimously ruled to bear arms. It then struck down
ing guns to work strikes fear in the that Oklahoma employees have the the District of Columbia law be-
hearts and minds of employers ev- constitutional right to keep guns in cause it violated that right. How-
erywhere. Workplace violence is ris- their vehicles at work. ever, the Court noted that the right
ing in the face of layoffs, furloughs, In connection with the Ramsey secured by the Second Amendment
and the economic pressures suffered Winch case, in 2006, an Oklahoma is not unlimited. The Court recog-
by employees. Employers now must lawmaker wrote to OSHA to inquire nized the validity of “longstanding
balance the duty to maintain a safe whether guns in the workplace were prohibitions” on the possession of
workplace with employees’ right to a recognized hazard. The Agency an- firearms by felons and the mentally
bear arms under the Second Amend- swered the lawmaker’s question by ill. It also recognized laws prohib-
ment of the Constitution of the Unit- stating: “Gun-related violence is not iting firearms in “sensitive places,”
ed States, their rights under state con- a recognized occupational hazard in such as schools and government
stitutions, and laws allowing guns at the industry as a whole.” The Tenth buildings, as well as laws imposing
work — which is a new and growing Circuit held that OSHA “is aware conditions and qualifications on the
trend in employment legislation. of the controversy surrounding commercial sale of firearms.
The Import of the firearms in the workplace and has The Supreme Court’s decision in
consciously decided not to adopt a Heller leaves a lot of questions unan-
Occupational Health
standard.” The court found that the swered. For example, the Court de-
And Safety Act clined to establish a standard against
“Act is not meant to interfere with
Section 654(a)(1) of the Federal which gun control laws will be mea-
states’ exercise of police powers to
Occupational Health and Safety Act sured; it did not address whether the
protect their citizens,” and discussed
(the “Act”), also referred to as the Second Amendment affects the laws
OSHA’s reluctance to regulate, and
“general duty” clause, mandates that of the individual states differently
courts’ reluctance to find preemp-
each employer “shall furnish to each from those in the federally controlled
tion, in areas dealing more generally
of its employees employment and a territory of the District of Columbia,
with social policy and crime preven-
place of employment which are free whose status is unique; the Court did
tion, rather than specific workplace-
from recognized hazards that are related conditions and hazards. not address whether the right to bear
causing or are likely to cause death The court viewed the Oklahoma arms inside the home for self-defense
or serious harm to his employees.” law as an example of general regu- also extends to a person’s car or his
While the United States Occupa- lation under the state’s police pow- place of work; and the decision did
tional Safety and Health Administra- er. In the absence of clear congres- not address clearly when safety con-
tion (“OSHA”) has issued voluntary sional intent to preempt state law in cerns outweigh an individual’s right
guidelines and recommendations for that area, the court did not find pre- to bear arms. In light of the Heller
employers seeking to reduce the risk emption under the Act’s general duty decision, it is unclear how the Court
of workplace violence, it has not pro- clause. Similarly, in 2008, a Florida will balance employer safety require-
mulgated any mandatory standards. District Court rejected an OSHA pre- ments against an individual’s rights
In February 2009, the Tenth Cir- emption challenge to Florida’s gun under the Second Amendment in the
cuit Court of Appeals considered the law. See Florida Retail Federation, future.
Inc. v. Attorney General of Florida, Interplay Between State
Rosanna Sattler, a member of this
newsletter’s Board of Editors, is a 576 F. Supp.2d 1301 (N.D. Fl. 2008). And Federal Law
partner and a member of Posternak, Should OSHA change its mind, we In May 2009, the Montana Legis-
Blankstein and Lund’s Executive can expect further challenges to lature passed a law asserting that
Committee. Her extensive litigation state laws allowing gun-toting em- guns manufactured and sold in
practice includes business litigation, ployees at work. Montana to people who intend to
environmental, employment and in- The Supreme Court’s Decision keep their weapons in Montana
surance coverage disputes. Nancy In District of Columbia v. Heller are exempt from federal gun reg-
Puleo is an Associate in the firm’s Em- In 2008, the United States Su- istration, background checks, and
ployment and Litigation Departments. preme Court addressed rights under continued on page 4
February 2010 Employment Law Strategist ❖ 3
Right to Bear Arms ity arising from compliance with the ages that result from a firearm if it is
law; however, they do not protect stored in accordance with the law.
continued from page 3 employers from liability under the Utah
dealer licensing rules because no federal law such as the general duty On March 31, 2009, Utah’s Gov-
state lines are crossed. Montana will obligations under the Act. ernor signed two bills into law: one
take the position that its “made in Some states have also included allows the storage of firearms in the
Montana” guns are unique and suffi- exceptions for certain types of park- employee’s locked vehicle while at
ciently segregated to be outside fed- ing areas, vehicles, and industries. work; the other allows employees
eral regulations. That principle will These exceptions allow employers to choose how they carry a hand-
probably be tested in court. There to establish or maintain prohibi- gun for self-defense (i.e., open, con-
may well be a decision over how far tions on firearms in parking areas cealed, loaded or unloaded).
the federal government’s regulatory when certain criteria are met, such Florida
authority extends. Similar measures as: secured parking areas, company In July 2008, after a three-year
have been introduced in Texas and vehicles, and special types of em- fight in the state legislature, Florida
Alaska. The federal government has ployees, e.g., those involved in na- enacted the Preservation and Protec-
argued that it has authority to regu- tional defense, aerospace, and nu- tion of the Right to Keep and Bear
late firearms under the interstate clear power generation. Arms in Motor Vehicles Act. Em-
commerce clause of the U.S. Con- The following illustrates the posi- ployers and other business owners
stitution because they can so easily tions of various states on the issue can no longer prohibit employees,
be transported across state lines. If of gun control in the workplace. customers, vendors or other “invi-
the Federal Bureau of Alcohol, To- Arizona tees” from keeping a firearm locked
bacco and Firearms (“ATF”) issues a On May 13, 2009, the Arizona State in a parked car while conducting
determination that the manufacture House of Representatives passed a business at the facility. No “Right to
of these firearms is illegal without bill that would permit workers to Carry” license is required. The new
federal dealership licensing, the is- store their firearms in their locked law requires the Florida Attorney
sue will probably make its way to vehicles. General to bring claims on behalf of
the United States Supreme Court. Texas employees or customers against em-
Recently Enacted In March 2009, the Texas Senate ployers or businesses. The Attorney
State Laws unanimously approved a bill that General can negotiate a settlement;
At press time, at least 13 states would restrict an employer’s right to however, individuals whose rights
had passed legislation banning em- prohibit an employee who holds a have been violated under the law
ployers from prohibiting firearms in license to carry a concealed hand- still have the right to bring a civil
employees’ vehicles at work. Alas- gun from keeping a legal firearm in action. The law also provides a fine
ka, Arizona, Florida, Georgia, Indi- a locked, privately owned, vehicle in of $10,000 for each violation.
ana Kansas, Kentucky, Louisiana, an employer-controlled parking lot Georgia
Minnesota, Mississippi, Nebraska, or garage. The law would also create In 2008, Georgia passed the Busi-
Oklahoma, and Utah enacted laws a new cause of action for employees ness Security and Employee Privacy
that place some limitations on an who are terminated for storing a fire- Act, which expanded the areas in
employer’s right to prohibit guns arm in compliance with the statute. which holders of firearms licenses
in cars parked on the premises of There are a number of significant may legally carry concealed weap-
the employer. Similar legislation is exceptions including allowance of ons and places some limitations on
pending or has been considered in employers to enforce a policy, which employers’ rights. Similar to the Flor-
Alabama, California, Missouri, Mon- prohibits employees from conceal- ida law, the Georgia law prohibits
tana, New Hampshire, Pennsylvania, ing the firearm from plain view. Also, employers from banning concealed
South Carolina, Tennessee, Texas, restrictions may be placed on use of weapons on company property. It
Virginia and Wisconsin. parking areas for the general pub- also places significant limits on an
Employers that are required to al- lic if an alternative location on the employer’s right to search vehicles
low firearms to be stored in employ- employer’s property exists. Accord- parked on site. Unlike Florida’s law,
ees’ vehicles on their property have ing to the bill, which at press time however, Georgia’s law does not ap-
been concerned about liability for had still not passed, the employer ply to employers that own the em-
injuries and damage caused by those would have the option of providing ployee parking lot property. It pre-
firearms. To address these concerns, an alternative parking area for those serves the rights of the employer, as
states such as Alaska, Florida, Geor- employees with firearms. Employers a property owner, to restrict access
gia, Louisiana, Oklahoma, and Mis- may prohibit an employee from car- by prohibiting concealed weapons.
sissippi have included civil liability rying a firearm on business prem- The Georgia law does not permit
waivers in their parking-lot firearms ises or in a vehicle owned or leased the employer to search the employ-
laws. Typically, these provisions im- by the company. Employers cannot ees’ vehicles even if parked at the
munize employers from state liabil- be sued under Texas law for dam- continued on page 5
4 Employment Law Strategist ❖ February 2010
Right to Bear Arms Mississippi, held that workplace
shootings were a workers’ com-
tion, employers, and employees will
certainly seek answers to the ques-
continued from page 4 pensation matter. See Tanks v. Lock- tions created by the courts’ decisions
employer’s place of business, un- heed Martin Corp., et al., 417 F.3d and various state laws regarding
less there is reason to believe that 456 (5th Cir. 2005). The decision firearms in the workplace. Notwith-
the employer might present an im- stemmed from a 2003 shooting ram- standing the enactment of the state
mediate threat to the health, life, or page at a Lockheed Martin plant in laws, employers still must provide
safety of others. The employee must Meridian, MS, in which an employ- a safe workplace for employees,
consent to the search, which may ee left a mandatory diversity train- and intervene where appropriate. If
defeat the purpose. Also, if there ing class at his work site, returned necessary, as a response to violent
is consent, then query whether the with a 12-gauge shotgun and semi- behavior by a worker, an employer
exception is needed. Further, if an automatic rifle, and shot 14 people may need to secure a court order
employee is subject to disciplinary before killing himself. The Fifth Cir- prohibiting the employee from car-
action, employers may revoke the cuit’s holding meant that employees rying guns to work. In states with
right to bring concealed weapons and family members who sued the pro-gun laws, employers may need
on the property. This provision does employer for liability were limited to to re-write employee handbooks to
not seem effective, as an employee awards of $150,000 each. The ruling include firearms policies specifical-
subject to discipline may well be a stated that “[t]he only viable conclu- ly created to reflect the reality that
person likely to commit violence in sion is that … [the employee’s] act of guns could be present in the park-
the workplace. Finally, company- shooting cannot be separated from ing lot. Employee training should
owned vehicles are exempt. the employment status of his vic- take place to explain exactly what
Alaska tims.” Critics of the decision argue is, or is not, allowed by the employ-
In Alaska, employers are pro- that it could lead large corporations er within the confines of the law. In
hibited from establishing policies to believe there is no need to curtail states that have not enacted such
banning employees from bringing workplace violence because of their laws, employers should review this
weapons to company parking lots. potentially limited liability. issue with employment counsel and
Tri-State Decision Conclusion develop policies and procedures
A 2005 Fifth Circuit decision, Litigation between state’s rights with respect to firearms at work.
which covers Texas, Louisiana, and advocates, the National Rifle Associa- —❖—

Compensable Workday At or after the end of the scheduled in the courts have met with limited
workday, an employee may need success. The important point, how-
continued from page 1 time to log off from a computer or ever, is that if an employee can per-
activity. However, those concepts do may choose to check e-mails. suade a court to call, for example,
not necessarily include everything an What Is ‘Work’? a particular morning task “integral”
employee might do to get ready for Recognizing these realities, em- and “indispensable,” that activity can
work at the beginning of the day, or ployees have sought clarification in become the first principal activity of
that they may do after the traditional the courts as to what it means to the day. For compensation purposes,
or scheduled workday has ended. “work” — arguing that beyond the the employee then is on the clock
Time can be spent turning on, boot- things their employers had hired — and is required to be paid — for
ing up, and opening certain computer them to perform from the beginning all of his or her work time from that
programs needed to perform an em- to the end of the workday, there moment forward. The same dynamic
ployee’s duties. Employees may have occurs from the end of the tradition-
were certain additional tasks they
to print out and read certain reports. al workday until the completion of
had to complete in order to per-
They may have to check in with se- any alleged last principal activity.
form these principal activities and
curity or go through other screening Thus, a meat cutter in a slaughter-
that they should be paid as well for
processes just to be able to get to a house was originally thought to be
the time spent doing them. Their ef-
work station to perform their jobs. entitled to payment only beginning
forts have led to a major expansion
with the time he or she reached the
of the concept of “work,” to encom-
Christopher A. Parlo is a partner in butcher table, poised to begin carv-
pass not only the principal activities ing the first side of beef, until courts
Morgan Lewis’s Labor and Employ- themselves, but also activities that
ment Practice. He represents and decided that the job could not be
are “integral” and “indispensable” to done with a dull knife. In a blink,
counsels management clients in a the principal activities.
broad spectrum of industries and in sharpening knives became the first
all aspects of labor and employment
When Does the Day Begin principal activity of the day and the
law. Michael J. Puma is a partner in And End? meat cutter was entitled to be paid
the firm’s Employment Practice. His To this day, however, the boundar- not only for the time spent with
practice includes the full spectrum of ies of this additional “work” remain the sharpening stone, but also for
labor and employment law matters. murky, and efforts to define them continued on page 6
February 2010 Employment Law Strategist ❖ 5
Compensable Workday gue an entitlement for this time even
if his or her employer did not ask
direction of a supervisor), that they
must record and report all time spent
continued from page 5 that any extra outside work be done. performing off-site business activi-
all of the intervening time from the Remember, the compensable work- ties, and that they will be required to
grinding room to the refrigerator to day runs from the first principal ac- return their electronic devices when
tivity of the day to the last principal the work is complete.
the butcher table, including interim
activity. It does not start and stop to Second, employers should encour-
walking time where the butcher was
account for intervening downtime, age nonexempt employees to adopt
not performing duties precisely de-
such as commuting. practices that keep work at the
fined as “butchering,” but walking
Take, for another example, an workplace. Encourage employees to
from place to place.
employee who pulls out his or her go home and rest, not work. Estab-
Needless to say, this created a
BlackBerry first thing in the morn- lish limits for time that can be spent
problem for employers, but a reason-
ing to read and respond to e-mails. checking emails and voicemails dur-
ably containable one. Although con-
At first blush, this might sound like ing non-work hours. Consider refus-
siderable uncertainty existed (and
only a good thing for an employer, ing remote access to e-mail for non-
continues to exist today) over what
blessed to have such a diligent and exempt employees altogether. The
activities qualify as “integral” and
fastidious employee. But wait! That policy’s goal is to make sure that
“indispensable,” at least all of the ac-
employee may also be found to be only those nonexempt employees
tivities occurred in the workplace, so
performing an “integral” and “indis- who have to work off-site are given
employers could conceivably observe
pensable” part of his or her job by access to work-related technology
and monitor what their employees
checking messages, which effectively and that they use it no more than is
did and how long it took.
starts his or her day for compensa- necessary.
Technology Expands the tion purposes, long before he or she Third, employers need to monitor
Workday even reaches the office. The employer compliance with any company poli-
What happens, however, when the also now has an electronic record of cies limiting the use of remote work
workplace itself is no longer con- all the time that is spent, beginning devices. Consider requiring nonex-
tained within the four walls of an with the employer’s electronic record empt employees who use remote
office or plant? What happens to the of the BlackBerry login. So, this dili- devices to sign an annual acknowl-
compensable workday in what we’ll gence comes at a high price. edgement form signifying their un-
call the “BlackBerry Age”? For many Controlling Exposure derstanding of the policy. Employers
years now, employees have been Because changes in technology can also audit or sample e-mail and
permitted — and in some cases re- have made it easy for employees voicemail logins and other records
quired — to work without being to extend their workdays well be- of employee time spent using re-
physically present in their places of yond the hours indicated by the mote electronic devices and com-
employment. Technology has driven time clock at the plant or the of- pare these records to pay records to
this expansion of the workplace to fice — and thus more difficult for ensure that all compensable time is
include homes, cars, hotel rooms, employers to monitor and control being paid. Employers should also
airplanes — virtually any place that — employers now have to manage make sure that managers have a
is cell phone– laptop– or BlackBer- the use of technology carefully to firm grasp of all of the policies as
ry–accessible. This has been both a avoid potentially crushing exposure well. Require managers to confirm in
convenience and a productivity en- to overtime claims for hours worked writing that they have no knowledge
hancement for employers and em- outside of the traditional compens- of uncompensated off-site work per-
ployees. But these technological ad- able workday, and outside of the tra- formed by nonexempt employees,
vances have profound implications ditional workplace. There are steps train them not to encourage and not
for what constitutes the compens- an employer can take to control and to ignore such work, and discipline
able workday. limit this exposure. those managers who permit it.
Take, for example, an employee First, employers should establish Conclusion
who brings his or her laptop home, a policy to limit the distribution of Perhaps the most important thing
and there performs some extra work. technology. Remote work devices an employer can do to avoid expo-
That employee may be entitled to be (BlackBerrys, cell phones, laptops) sure to overtime claims is not to as-
paid not only for the few minutes could be issued only to exempt per- sume it can accept the benefits of
actually spent editing a document or sonnel, who are not entitled to over- work performed off-site, even if it
reading e-mails at night before he or time pay, and only as needed. If non-
was done without permission and/
she sits down to dinner or goes to exempt personnel need short-term
or in violation of company policy. If
bed, but also for all of the intervening access to company technology off-
a nonexempt employee works out
time from the minute the employee site, a company can require that they
of the office, pay him or her. Then
left the office until he or she reaches acknowledge, preferably in writing
enforce any rules against such work
home, turns on the computer there via an acknowledgement form, that
with disciplinary measures.
and finishes checking her document these tools may not be used outside
or e-mails. The employee could ar- scheduled work hours (except at the —❖—
6 Employment Law Strategist ❖ February 2010
Brinker (A); McFarland, 538 F. Supp. 2d at hour of work. See Bibo, 2009 U.S.
1217, n.3. As an employer’s act of Dist. LEXIS 37597, at 27-35.
continued from page 2 obtaining (or failing to obtain) the Claims Based on Waiver
requisite written consent will gener- By Collective Bargaining
Guardsmark, LLC, 538 F. Supp. 2d
ally be a standardized practice com-
1209, 1217 n.3 (N.D. Cal., 2008). Agreement
mon among all employees, both of
Whether an employer has satisfied In addition to the forgoing, class-
these elements are susceptible to
each of these elements may gener- wide claims may also be predicated
class adjudication.
ally be adjudicated on a classwide upon a uniform waiver of meal and
Importantly, while the on-duty
basis. rest periods by way of a collective
exemption “applies only to meal
Under the first element of the bargaining agreement. Meal and
periods, not to rest breaks” (Bu-
defense, an employer is entitled to rest periods are not exempted un-
fil, 162 Cal. App. 4th at 1205), em-
offer an on-duty meal break to em- der Labor Code § 514, and as such,
ployers who seek to defend a meal
ployees only if “the nature of the cannot be subject to waiver by a
break action by such means may
work prevents an employee from collective bargaining agreement as
be unwittingly setting up an argu-
being relieved of all duty … .” See, a matter of law. See Zavala v. Scott
ment for class adjudication of rest
e.g., 8 CCR 11040(11)(A). “The test Brothers Dairy, Inc., 143 Cal. App.
of whether the nature of the work period claims under barrier theory.
4th 585, 593 (2006); Valles v. Ivy
prevents an employee from being Indeed, an employer who advocates
Hill Corp., 410 F.3d 1071, 1081-82
‘relieved of all duty’ is an objective that it was entitled to invoke the on-
(9th Cir., 2005) (holding that “any
one” [DLSE Enforcement Manual, at duty meal break exemption based
provision of the collective bargain-
§], and is focused on the on the inherent nature of its work
ing agreement purporting to waive
employer’s business “overall.” See by necessity must make an admis-
the right to meal periods would be
West v. Circle K Stores, Inc., 2006 sion that common impediments
of no force or effect: The right in
U.S. Dist. LEXIS 42074, 14 (E.D. Cal., existed that precluded free access
question is plainly nonnegotiable.”);
2006) (rejecting an employer’s argu- to all breaks — including rest pe-
Tormey v. Vons Cos., Inc., 2007 U.S.
ment that “the nature of the work riods. An employer cannot have it
Dist. LEXIS 66010 (S.D. Cal. Sept. 5,
exception applies on a case-by-case, both ways. An employer that utilizes
2007). Based on such authority, an
shift-by-shift basis[,]” as “the excep- the on-duty meal break exemption
employer’s effort to secure a univer-
tion was more likely provided to al- to overcome inherent impediments
sal waiver by such means presents
low employers some relief when the will be liable if no action is taken to
a common issue ideal for class ad-
nature of the work in their business provide employees some means to
overall does not permit a mid-shift access off-duty rest periods. Under
most circumstances, the employer’s Claims Based on
meal break.”). As the nature of the
effort to avail itself of the “on-duty” Misclassification of
work element is one that applies to
all employees equally, courts have exemption all but ensures that rest Exempt Status
concluded that this issue is one break claims will be amenable to Finally, classwide claims may also
that may, and properly should, be class adjudication as well. be predicated upon a challenge of
adjudicated on a class-wide basis. Claims Based on Facially an employer’s policy of improperly
See, e.g., Bufil, 162 Cal. App. 4th at Unlawful Break Policies classifying employees as exempt.
1203-1204 (concluding that the is- Courts have also continued to As a general rule, meal and rest pe-
sue of whether an employer’s prac- certify classes based on meal and/ riod requirements do not apply to
tice of scheduling a single employee or rest period policies alleged to fa- exempt employees under the Wage
to work alone was sufficient to satis- cially violate meal and rest period Orders. See, e.g., 8 CCR 11040(1)(A)
fy the “nature of the work” element requirements set forth in the Wage (“Provisions of sections 3 through
was “a legal question concerning Orders. See, e.g., Bibo v. Fed. Express, 12 shall not apply to persons em-
the liability of Dollar to each puta- Inc., 2009 U.S. Dist. LEXIS 37597, 30 ployed in administrative, executive,
tive class member.”); West v. Circle (N.D. Cal., Apr. 21, 2009) (“Plaintiffs or professional capacities.”); Wiegele
K Stores, Inc., 2006 U.S. Dist. LEXIS have identified the relevant policies v. FedEx Ground Package Sys., 2008
42074, at 14. and the law with which they argue U.S. Dist. LEXIS 10246, 6 (S.D. Cal.
Under the second and third ele- the policies are inconsistent, and Feb. 12, 2008) ( holding that “[a]n
ments of the defense, an employer as such offer a common question employee classified as ‘exempt’ … is
may be held liable if it utilizes the of law and fact that predominates not covered by California's overtime
on-duty exemption without first se- over individual inquiries.”). In Bibo, and meal and rest period laws” and
curing a written agreement from em- the court certified meal period sub- “[i]f a classification is challenged, the
ployees, or if the written agreement classes based on policies which vio- employer must demonstrate that its
fails to state expressly that the em- lated provisions requiring that: 1) a ‘exempt’ classification is proper.”).
ployee may revoke the agreement at meal period be uninterrupted; and Thus, where an employer maintains
any time. See e.g., 8 CCR 11040(11) 2) breaks be provided after the fifth continued on page 8
February 2010 Employment Law Strategist ❖ 7
Hodges has joined its Seattle office.
M o v e r s &  S h a k e r s Hodges is an associate in the Em-
ployee Benefits group and practices
Weil, Gotshal & Manges an- Potter Anderson & Corroon LLP in the area of executive compensa-
nounced that Allan Dinkoff, former- announced that 14 of its attorneys tion and employee benefits. He has
ly a Managing Director and Head of were named 2009 Delaware Super broad experience with tax qualifica-
the Employment Law Group at Mer- Lawyers. The Delaware Super Law- tion, reporting, disclosure, fiduciary
rill Lynch & Co., Inc., has joined the yers listing reflects the top 5% of the and compliance issues for all types
firm’s Employment Litigation Prac- attorneys statewide based on nomi- of employee benefit plans.
tice as counsel in the New York of- nations by peers and independent
fice. Mr. Dinkoff has nearly 30 years research by the publishers of Law & Hinshaw & Culbertson LLP an-
of experience handling employment Politics magazine. Kathleen Furey nounced that the Governors of the
matters and complex commercial liti- McDonough was listed in the area College of Labor and Employment
of Employment & Labor. Lawyers have elected Capital Partner
Thomas Mandler as a new Fellow
William K. Kennedy II has been of the College. Fellows are named
Ronald Stadler has joined Smith-
made a partner in Ballard Spahr’s for their sustained outstanding per-
Amundsen LLC in the firm’s Mil- Philadelphia office. He is a member
waukee, WI, office as a partner in formance in the profession, exem-
of the Litigation Department and the plifying integrity, dedication and ex-
the Labor & Employment practice Labor, Employment & Immigration
group. Mr. Stadler has over 20 years cellence, according to the College.
Group. He represents management and They are dedicated to the study and
of experience as a trial attorney and government entities in employment- enhancement of professional ethics
adviser to his clients in the areas of related litigation, labor arbitrations, in the practice of labor and employ-
labor and employment law, school collective bargaining negotiations, and ment law and to the improvement
law, commercial litigation, and mu- unfair labor practice disputes. of the delivery and quality of labor
nicipal law. He regularly advises pri-
and employment legal services.
vate and public sector employers on Stoel Rives LLP, a business law
labor and employment matters. firm, announced that Jeffry A.

in dismissing “for lack of any writing”

VER D I C TS their claim for breach of fiduciary
duty under ERISA. The panel con-
Claim of Breach of Fiduciary was governed by ERISA. The district cluded that because a statement can-
Duty under ERISA Fails court summarily dismissed their al- not effect a change in an ERISA plan,
In Ladouceur v. Credit Lyonnais, legations of promissory estoppel and that statement cannot be given effect
07-4040-cv, U.S. Court Of Appeals, breach of fiduciary duty based on by re-characterizing it as a breach of
Second Circuit, Sept. 30, 2009, plain- the oral misrepresentations. On ap- fiduciary duty. It observed that to give
tiffs were employed by a Credit Lyon- peal, plaintiffs argued that an oral such effect to an oral statement would
nais subsidiary absorbed by its cor- representation was enough to show a undermine ERISA’s framework ensur-
porate parent in 2001. They alleged breach of fiduciary duty claim based ing that ERISA plans be governed
that Credit Lyonnais and its human on a purported alteration of a benefits by written documents and dilute the
resources director orally misrepre- plan governed by ERISA. The panel protection conferred by the writing
sented the merger’s effect on plain- affirmed judgment rejecting plaintiffs’ requirement.
tiffs’ pension benefits plan, which assertion that the district court erred —❖—

Brinker ing certification of manager class od claims. In a post-Brinker world,

alleging, among other things, the just as before, standardized poli-
continued from page 7 failure to provide meal and rest pe- cies and practices that categorical-
that it was not required to provide riods based on employer’s improper ly impede employee access to meal
breaks based on a policy of categori- exempt classification). and rest periods continue to pres-
cally classifying certain groups of em- Conclusion ent the paradigm theory for class
ployees as exempt, that policy may, In sum, the Brinker line of cases adjudication of a meal and/or rest
in some cases, be adjudicated on a falls far short of a fait accompli in period claim.
class-wide basis. See, e.g., Wiegele, terms of a categorical bar to class —❖—
2008 U.S. Dist. LEXIS 10246 (grant- adjudication of meal and rest peri-

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8 Employment Law Strategist ❖ February 2010