Saturday, September 26, 2009

The "Nature of the Work" Catch-22: Using the Meal Period Exemption to Establish a Class Wide Barrier to Rest Breaks

In the world of wage and hour class action litigation, employers are increasingly seeking to use the “on-duty” meal break exemption as a waiver defense to the action. Yet, employers who seek to defend a meal break class action by such means not only ensure a basis for class-wide adjudication of meal period claims [See Bufil v. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193 (2008)], they may be unwittingly setting up an argument for class adjudication of rest periods claims as well.

An on-duty meal break is a codified exception to the requirement that “off-duty” meal breaks be given, and may be utilized by the employer “onlywhen the nature of the work prevents an employee from being relieved of all duty ….” See e.g. 8 CCR 11040(11)(A). “The test of whether the nature of the work prevents an employee from being ‘relieved of all duty’ is an objective one” [DLSE Enforcement Manual, at § 45.2.3.1], and is focused on the employer’s business “overall.” See West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 42074, 14 (E.D. Cal., 2006).

In light of the forgoing standards, an employer who advocates that it was entitled to invoke the on-duty meal break exemption based on the nature of its work may unwittingly be making an admission that common impediments existed that precluded free access to all breaks – including rest periods. Such an admission is material – not only because the on-duty exemption applies only to meal periods, but also because the existence of a common barrier provides a basis for class adjudication of a rest period claim.

Thus, the astute class advocate should evaluate whether the “on-duty” exemption may be used to the employee’s advantage. An employer cannot have it both ways. An employer who claims the “nature of the work” precludes access to meal periods may not defeat class certification of rest period claims by arguing it is not an insurer of breaks. Under most circumstances, the employer’s effort to avail itself of the “on-duty” exemption all but ensures that rest break claims will be amenable to class adjudication as well.

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