Thursday, February 17, 2011

Second District (Division 8) Issues Two New Opinions Involving Meal and Rest Periods: UPS v. Super. Ct. & Tien v. Tenet Healthcare

On February 16, 2011, the Second District Court of Appeal, Division 8, issued two new opinions involving meal and rest period claims. The first, UPS v. Super. Ct., __ Cal. App. 4th __ (2011), considered whether Labor Code Section 226.7 “authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day – one for failure to provide a meal period and another for failure to provide a rest period.” Slip Opinion, at 1. According to the Court, Section 226.7 permits employees to recover the latter:
In short, we conclude, based upon the wording of section 226.7, subdivision (b), the legislative and administrative history of the statute and IWC wage orders, the public policy behind the statute and wage orders, and also the principle that we are to construe section 266.7 broadly in favor of protecting employees, that the employees in this case may recover up to two additional hours of pay on a single work day for meal period and rest period violations – one for failure to provide a meal period and another for failure to provide a rest period.
Slip Opinion, at 12.

The second opinion, Tien v. Tenet Healthcare, __ Cal. App. 4th (2011), upheld a trial court’s order denying certification of the plaintiff’s meal and rest period claims. The Court opinion essentially tracks the same analysis of its previous opinion in Hernandez v. Chipotle Mexican Grill, Inc., 189 Cal.App.4th 751 (2010), which was recently depublished by the California Supreme Court’s January 26, 2011 grant-and-hold order pending its decision in Brinker.

The Tien opinion does include a somewhat unique wrinkle – it affirmatively concludes that “an employer who frustrates its employees’ exercising of their right to meal periods violates the employer’s obligation to ‘provide’ meal periods” in the first instance:
“The California Supreme Court has described the interest protected by meal break provisions [to mean] that ‘[a]n employee forced to forgo his or her meal period . . . has been deprived of the right to be free of the employer’s control during the meal period.’ ” (Brown v. Federal Express Corp. (C.D.Cal. 2008) 249 F.R.D. 580, 585 (Brown), quoting Murphy v. Kenneth Cole Prods., Inc. (2007) 40 Cal.4th 1094, 1104.) Consistent with the purpose of requiring employers to provide employees with meal breaks, the Labor Code uses mandatory language (e.g., Lab. Code, § 226.7, subd. (a) [“No employer shall require any employee to work during any meal or rest period . . . .”]) precluding employers from pressuring employees to skip breaks, declining to schedule breaks, or establishing a work environment that discourages employees from taking their breaks. A corollary to an employer’s obligation to ensure that its employees are free from its control for 30 minutes is the employer must not compel the employees to do any particular thing during that time – including, if employees so choose, not taking their meals. (Brown, supra, at p. 585.)
Slip Opinion, at 13.

While there are numerous cases which have made this distinction, the highlighted language perhaps goes the furthest of any opinion which I am aware in defining what I will refer to as the "barrier theory" (which, as the Tien Court explains, is distinct from the issue before the California Supreme Court in Brinker). At any rate, as the Court's analysis upholding the denial of certification largely mirrors Brinker, Brinkley and Chipotle, it is likely that this Opinion's shelf-life will be a short one.

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