Legal Updates
Legal Updates
New York Law Office Requirement Held Unconstitutional
Schoenefeld v. New York, 2011 WL 3957282 (N.D.N.Y., 2011)
The U.S. District Court for the Northern District of New York struck down a New York
statute that required New York-licensed lawyers who reside out-of-state to maintain an in-
state office as unconstitutional under the privileges and immunities clause.
Click on the link to view the full alert or visit the following Internet address:
www.hinshawlaw.com/new-york-law-office-requirement-held-unconstitutional-11-16-2011
(via Lawyers for the Profession Newsletter)
THE BRINKER CASE DECISION
Brinker Restaurant Corporation v. Superior Court (Hohnbaum)
Filed April 12, 2012; Cite as S166350
The California Supreme Court issued the long-awaited decision in the Brinker case on April 12, 2012 and came down on the side of employers. We summarize for you the most salient points of the Brinker case below. You will find the full case at the link given above.
In reading the Court's decision, it is important to remember that the Court did not eliminate the need for employers to provide both 10 minute rest periods and a duty-free lunch period of at least 30 minutes.
Meal Periods
Employers covered by Industrial Welfare Commission (IEC) wage order No. 5-2001 (Cal. Code Regs., tit. 8; § 11050) have an obligation both to relieve their employees for at least one meal period for shifts over five hours . . . and to record having done so. . . . If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relived of duty and no meal period was provided." The burden remains on the employer to prove that an mployee has waived the opportunity for a work-free break.
Brinker does not alter the foregoing basic obligations, but does clarify the extent of the obligations by finding that employers are not required to "police" whether or not employees are performing some work duties during those lunch and rest breaks. However, if an employee can prove that there are no rest or duty-free meal periods really given because of the employer's policies and/or practices, the employer will be in violation of the law.
"An employer's duty with respect to meal breaks under both section 512, subdivision (a) and Industrial Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. . . . On the other had, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b)."
Therefore, "when someone is suffered or permitted to work-i.e., employed-for five hours, an employer is put to a choice: it must (1) afford an off duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on duty meal period if circumstances permit. Failure to do one of these will render the employer liable for premium pay. (§ 226.7, subd. (B); Wage Order No. 5, subd. 11(A), (B).) . . . because the defining characteristic of on duty meal periods is failing to relieve an employee of duty, not simply 'suffering or permitting' work to continue, it follows that off duty meals periods are similarly defined by actually relieving an employee of all duty: doing so transforms what follows into an off duty meal period, whether or not work continues."
First and Second Meal Period Timing
The Court analyzed the timing of the meal periods under both Labor Code section 512 and IWO No. 5 and concluded that ". . . an employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work."
Rest Periods
An employee should receive ". . . no rest break for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours.
Conclusion: Brinker will give us a lot to talk about over the next few months. For now, do keep your rest and meal periods in compliance with the applicable Wage Order. And I still advise that you have employees clock in and clock out for lunch or otherwise record the meal breaks.
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