On the Brink of a Decision

The California Supreme Court will soon issue its opinion in the widely talked about Brinker meal and rest periods case. A hearing is set for November 8, 2011, and a final decision is due within 90 days of that date.

In question are the meaning and requirements of California’s rule on meal and rest breaks. The court’s written opinion will decide:

• Whether employers must ensure employees take their meal and rest periods or simply make the breaks available
• When employees must take their meal break
• The number of required rest breaks during a shift and when they must occur

Sign up by Monday, November 7, 2011, to receive email notification of the court’s decision, plus advance notice of CalChamber’s follow-up webinar, "Meal & Rest Breaks: What Does the Brinker Decision Mean for Your Workplace?"

Our employment law experts, Susan Kemp and Erika Frank, will analyze the Brinker decision and discuss how it impacts current meal and rest break requirements. You’ll also learn best practices and tips on complying with the court’s ruling.

Request the notification alert, and CalChamber will give you advance registration notice for the webinar before we officially announce the webinar date, time and details.

Let’s Do Lunch! Brinker Set For Oral Argument

The date has finally arrived. The California Supreme Court set oral argument in Brinker v. Superior Court for November 8, 2011. Once the oral argument occurs, the justices can take up to 90 days to give a written opinion in the case.

This means we could have a decision by early February 2012, if not sooner.

Employers have been anticipating a decision in this case for three years now. The key issue before the court is: What does the word “provide” mean? Does it mean employers are required to merely make meal and rest periods available? Or does it mean employers must make sure that employees take them? Other issues before the court include the timing of meal and rest periods.

While we have been waiting for a Brinker ruling, California courts of appeal continued to rule that employers do not have to force employees to take meal periods, but only make them available for employees to take. These decisions have been placed on hold until the Supreme Court resolves the Brinker issues.

Despite these decisions, until Brinker is decided, employers must continue to make sure that their employees take these breaks.

For more information on the Brinker history, see Meal and Rest Period Compliance Unresolved.

Stay tuned …  

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Law School Grad Without a License Properly Classified as Exempt

A California Court of Appeals recently examined whether a law school graduate who is not yet licensed to practice law is an exempt employee or is nonexempt and entitled to overtime. The court ruled in Zelasko-Barrett v. Brayton-Purcell, LLP, that the law clerk met the professional employee exemption.

This is the first California court decision to apply and extend a federal court's ruling in Campbell v. PricewaterhouseCoopers LLP that unlicensed accountants may be classified as exempt employees. HRCalifornia members can read more on the Campbell ruling.

Matthew Zelasko-Barrett, who worked as a law clerk for almost two years, sued his former law firm for failing to pay him overtime wages and provide other benefits under California law for the time period that he worked as a law clerk before passing the bar exam. 

He alleged that he was wrongly classified as an exempt employee under the professional exemption test. Because practicing law is one of the listed professions in the exemption for which licensure is required, he argued that he could not be considered employed in a law-related professional capacity unless he was licensed to practice law.

The court disagreed.

This case will be covered in more detail for HRCalifornia members in the September 1 edition of HRCalifornia Extra, our e-newsletter. Not a member? Sign up for a 15-day Free Trial.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Failure to Provide Meal and Rest Period Equals Two Violations

There has been a great deal of discussion about the "premium wage" employers owe an employee who misses a meal period and a rest period in one day — is it one hour of pay? Or is it two hours of pay because two violations occurred?

The Court of Appeal ruled on February 16, 2011, that there are two separate remedies, as the “premium wage” requirement is contained in two separate sections of the Wage Orders.

The additional hour of pay requirement is found in Labor Code section 226.7, which discusses the remedies together, rather than in separate sections. However, the actual language of the statute states that if a meal or rest period is not provided, the employer owes the employee one hour of pay “for each work day that the meal or rest period is not provided.”

The court reviewed the legislative history of Labor Code section 226.7 and concluded that the Legislature intended to match the Wage Order provisions, which clearly provide for two separate remedies — one for a violation of the required meal period and one for a violation of the rest period.

Susan Kemp, Manager of CalChamber's Labor Law Helpline and HR Adviser

Compliance Headaches for California Employers

Greetings once again from the road. 

Today, we finished our seminars in San Jose. The usual suspects, classifying employees, meal and rest breaks and final pay, continue to create compliance headaches for California employers.

Tomorrow, we conclude our two-week road trip with HR 201: Labor Law Update in Emeryville, where we will continue talking about these pesky topics.*

Our Employment Law Tip of the Day: All nonexempt employees must take a 30 minute, duty-free meal break within 4 hours and 59 minutes of that employee’s shift.

We've enjoyed the chance to meet you all in person.

Erika Frank and Susan Kemp

*CalChamber members get 20 percent off all compliance products, including seminars. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.