Discouraging Workers from Taking Meal Breaks Cost Walmart over $6M

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Two Walmart workers filed a California class-action lawsuit alleging lost meal breaks due to mandatory security checks. The plaintiffs, Chelsea Hamilton and Alyssa Hernandez, contended that the required security search took a lot of time,  was intrusive and embarrassing.  Plaintiffs did not claim that Walmart prohibited them from taking their break, but they did insist they were discouraged. Discouraging employees from taking their legally protected meal break cost Walmart $6.1 million when the jury awarded Walmart workers in April.

Throughout the years, lawsuits filed by employees have resulted in rulings on what employers can do, what employers cannot do, and what employers are required to do in different legal areas. One of the most common disputed areas is rest and meal breaks. This case makes it clear that employers may not make it too hard or too much of a hassle for their employees to take their legally protected meal breaks. Some say that “meal break discouragement” theory could be an important new element of California labor law.

According to the California Labor Code, non-exempt workers are entitled to receive a 30-minute meal break if they work over 5 hours in one day. Employers are not required to pay employees for the meal break. Employees who work more than 10 hours in one day are entitled to additional meal breaks. Employers are also required to provide employees with 10-minute breaks every 4 hours on the job. Unlike meal breaks, employers are required by law to pay employees during their mandatory 10-minute breaks.

Employers who do not comply with meal and rest break law are required to provide employees who missed mandatory breaks with one additional hour of regular pay for each day during which a meal break violation occurred. Another extra hour of payment is required for each day during which a rest break violation occurred during their work shift.

Past lawsuits and findings of the court have made it clear that both rest and meal breaks must be free of job duties and uninterrupted (this includes running errands for the company/employer or being on call).  

If you are experiencing meal and rest break violations in the workplace or if your employer does not offer meal or rest breaks to employees, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Find the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Wavedivision Holdings, LLC Faces Class Action Lawsuit for Alleged Meal and Rest Break Violations

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Wavedivision Holdings, LLC, a video, internet and phone services company, faces a class action lawsuit alleging that they failed to provide required overtime wages, legally required off-duty meal breaks and mandatory rest periods to their California employees. Blumenthal Nordrehaug Bhowmik De Blouw filed the class action on February 9, 2018.

The class action against Wavedivision Holdings, LLC is currently pending in the San Mateo County Superior Court, Case No. 18CIV00684.

Allegations in the class action include:

·      Failure to lawfully calculate overtime

·      Failure to pay overtime

·      Refusing to allow employees to take off duty meal and rest breaks

·      Refusing to fully relieve employees of job duties for meal periods

Details in the lawsuit indicated that employees were sometimes unable to take off duty meal breaks or rest periods. When they were provided with meal breaks, they were sometimes not fully relieved of their job duties. According to allegations made in the class action lawsuit, Wavedivision Holdings employees were required to work over five hours in a shift with no off-duty meal break; a violation of California labor law.

California labor law requires that all employers offer their employees who are working shifts over five hours in length with an uninterrupted meal break of at least thirty minutes before the employee’s fifth hour of work is completed. California employers are required to provide a second uninterrupted meal break for employees who work ten hours.

According to the lawsuit, class members were paid using a non-discretionary incentive program. Under the program, Wavedivision Holdings offered employees hourly compensation with additional incentive compensation if they were able to successfully meet performance goals put in place by the company. Yet when the company calculated the overtime rate of pay for these same employees, the company allegedly did not include the incentive compensation as part of the “regular rate of pay.” In doing so, the company or Defendant, Wavedivision Holdings LLC, was miscalculating their employees’ overtime pay rate as a matter of policy.

If you have questions about how to file a class action lawsuit or how to qualify as a member of a class action lawsuit, please get in touch with one of the experienced class action and employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Tentative Class Certification Offered to Thousands of Wells Fargo Employees in Meal Break Row

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Santa Clara County Superior Court Judge Brian C. Walsh, a California state judge, granted a tentative class certification to thousands of Wells Fargo workers. The employees claim that they were not paid appropriately (in accordance with employment law) for missed mealtimes. They also claim that Wells Fargo did not provide pay stubs as required. While the judge tentatively granted class certification, he did end up withholding his final ruling after hearing the bank’s argument that it used an individualized system to document meal premiums for their workers and that the individualized system does not support this type of class wide litigation.

Silvia Hernandez, former Wells Fargo customer service representative, filed the motion to certify two classes in the litigation. The banking giant, Wells Fargo, opposed the motion. Prior to the hearing, the judge issued a tentative written decision to both parties that he was going to grant the motion. But after the hearing, the judge stated that he needed to give the matter additional thought. He specifically said that he wasn’t actually changing the “tentative,” but that he was going to think about the matter.

The two classes off workers that Hernandez proposed in the motion were divided into two categories: a class based on the lawsuit’s wage settlement claims, and a class based on the second claims focused on the meal break violations. Most of the arguments during the hearing focused on the second of the two claims: meal break violations.

Hernandez, the original Plaintiff in the case, alleges that when Wells Fargo pays one of their non-exempt workers for a meal break that was missed, they base the pay on the worker’s hourly pay, but that the missed meal break pay should actually be calculated based on the worker’s total pay or compensation which would include bonuses. The bank claims that their calculations are based on self-reporting done by workers on an “honor system.” Thus, since they don’t verify the information provided by the workers – there’s a question regarding whether or not they can be held legally responsible for legal claims related to the amount of pay.

If you have questions about California labor law violations or if you need assistance with wage and hour or overtime violations, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Augustus v. ABM Security Services: On Duty Rest Breaks Rejected

In the midst of the holidays, the California Supreme Court issued a decision in Augustus v. ABM Security Services, Inc. stating that the law does not allow employers to require their employees to utilize on-duty or on-call rest breaks. The impact of this decision will likely impact thousands of California employment centers with similar policies, particularly in security, hospitality, and retail industries.

California’s Industrial Welfare Commission’s industry-specific Wage Orders require employers in the state to allow non-exempt employees to take a 10 minute rest break for each four hour work period. The law also indicates specifically that the 10 minutes should be consecutive and that, when possible, the break should occur in the middle of the shift. In Augustus v. ABM Security Services, Inc. the question was whether or not this requirement was fulfilled if the “rest break” was on-duty or on-call.

This particular case was based on plaintiffs’ complaints that they were non-exempt security guards working for the company, ABM Security Services, Inc. (ABM) at a variety of work sites (i.e. residential, commercial, retail, office, industrial, etc.) throughout the state of California, and their principal duties providing immediate response to emergency and/or life threatening situations and physical security on site required that they keep their pagers and radios on. There was no exception to the rule for rest breaks. As part of their job duties, security guards were required to keep pagers and radios on during rest breaks and stay vigilant and respond to any calls that occurred regardless of their rest break schedule.

ABM’s policy was based on the urgency or time-sensitive nature of some of the clients’ needs pertaining to the on site security guards in a number of different circumstances. Some such situations included: building tenant who wanted a security escort to the parking lot, the manager of a building that needed notification of a mechanical issue on site, and various “emergencies.”

Security guards working for ABM saw this as a violation of labor law and filed suit complaining that ABM failed to provide employees with compliant rest breaks. The plaintiffs were granted summary judgment and awarded approximately $90 million by the trial court, but the Court of Appeal reversed the decision.

The case presented two issues to be considered by the Supreme Court:

1.     Are employers required to allow employees to take “off-duty” rest breaks?

2.     Can employers require employees to remain “on-call” during rest breaks?

After considering the issue, the California Supreme Court came to a decision. They first noted that California law did not explicitly require employers to provide “off-duty” rest breaks, but they also took into consideration the plain meaning of the word “rest” and other language included in the Wage Order and Labor Code. When they concluded that rest breaks need to be off-duty they noted that California Labor Code section 226.7 prohibits employers from requiring any employee to work during any meal or rest period and that the relevant Wage Order’s wording indicated that rest breaks needed to be considered time worked. The court decided that the language indicating that “rest breaks” be counted as “work time” would not be necessary unless it was the intention of the law for rest breaks to be off-duty. ABM attempted to sway the court’s decision in their favor by pointing to language in the Wage Order discussing the possibility for employers (on rare occasion) to require employees to take on-duty meal breaks. Their argument did not hold as the Court’s opinion was that the absence of language authorizing the same for on-duty rest breaks was more telling than the existence of the exception made for meal breaks. The Court held that rest breaks must be off-duty.

The Court also had to consider whether employers could comply with requirements to provide employees with breaks while also keeping them “on call” during the break. ABM argued that there was a difference between an employer requiring that an employee keep working throughout their rest break and an employer requiring that the employee remain on call. The Court did not agree and noted that the practical realities of a 10-minute rest period must be considered. The time limitation alone already restricted the employees’ options regarding what they could do on break. The Court felt any additional limitations (i.e. requirements for pagers or phones or availability on site, etc.) were not in accordance with the intention of the law to offer employees a small period of “freedom” from the job for rest and to use for their own purposes. Based on these arguments, the Court held that on-call rest breaks were not compliant with the law. 

The Augustus decision will have a significant impact on California employers who utilize on-duty or on-call rest breaks in order to maximize staff productivity and accommodate single-employee shifts. Employers who are unable to comply with the rest break requirement to relieve employees of all duties may have to pay rest break premiums as an alternative. If you have questions regarding how the Augustus decision could affect you, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Staff Assistance Inc. Faces Claims of Overtime and Meal Break Violations

Blumenthal, Nordrehaug & Bhowmik filed a proposed class action Complaint against Staff Assistance, Inc. (SAI) on December 29, 2014 alleging labor law violations. The suit is currently pending in the Los Angeles County Superior Court. A full copy of the complaint is available online, but a brief summary outlining the main points of the suit follows. 

SAI is a California based company that offers home health, palliative care, caregiving and hospice care services through an extensive network of employees. Licensed Vocational Nurses employed by SAI filed the suit listing allegations of numerous violations of California Labor Laws.

Allegations included in the suit against SAI:

·       Licensed Vocational Nurses were required to work unpaid hours, resulting in a failure to pay both wages and overtime.

·       Failure to provide accurate and complete wage statements (enabling the company to avoid payment of overtime wages).

·       SAI failed to abide by legally required meal breaks – according to California law, employers must provide all non-exempt employees that receive hourly wages with thirty minute meal periods before they complete five hours on the job. Failure to provide an uninterrupted meal period as required results in a penalty of one hour of pay according to the California Labor Code.

·       Failure to provide reimbursement for expenses incurred while employees fulfilled job duties (such as costs of travel/gas when traveling from job site to job site as assigned). This is in direct violation of California Labor Code Section 2802 requiring California employers to indemnify employees for any and all expenses that are incurred while in the course of fulfilling the requirements of their employment.

Allegations made in the suit indicate that the company’s practice to avoid paying overtime wages is based on uniform policy evident in SAI business records.

To get additional information about the class action lawsuit against Staff Assistance, Inc., please get in touch with one of the attorneys at Blumenthal, Nordrehaug and Bhowmik at (866) 771-7099 or get answers online here. The southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik can assist you out of offices in: Los Angeles, San Diego, or San Francisco. Get in touch if you need someone to help you fight unfair business practices, or violations of the labor law in the workplace. 

California Court of Appeals Decision Reviewed by California Supreme Court: Meal Breaks for Hospital Employees on Long Shifts

July 14, 2015 - The California Supreme Court will review the decision made by California Court of Appeals regarding Gerard v. Orange Coast Memorial. The case is regarding providing meal breaks for hospital employees scheduled for long shifts. The meal-break suit outlines the dispute over whether or not an Industrial Welfare Commission order that allows health care workers to waive meal periods provided during long shifts actually conflicts with state law.

The ruling of the California Court of Appeals invalidated the portion of California’s Industrial Welfare Commission or IWC Wage Order No. 5. This particular portion allows non-exempt health care employees to waive their second meal break in shifts that are over 12 hours. It was seen as a landmark decision for both health care workers and their employers. Health care employers have relied on the Wage Order provision as do many other California employers. 

The Gerard case plaintiffs sued under the California Private Attorney General Act on their own behalf and on behalf of other employees in similar situations. They allege that (notwithstanding the Wage Order) Orange Coast Memorial was violating California State Labor Code. Employees at Orange Coast Memorial consistently work 12-hour shifts. Occasionally employees at the medical center work shifts longer than 12 hours. Any hospital employee that worked shifts over 10 hours was able to sign a written waiver of one of their two provided meal periods during long shifts; even if the “long” shift was 12+ hours.

The Court of Appeal addressed the seeming contradiction between IWC Wage Order No. 5 and the California State Labor Code Section 512 regarding meal periods and long shifts. The Court of Appeal ruling is troubling in its reversal of the rule health care facilities/employers rely on regarding non-exempt workers. The state’s high court will take up the case.

If you need additional information on California State Labor Law, IWC Wage Order No. 5 or meal breaks required by law in the workplace, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik

Supreme Court to Review Nixed $90M Rest Break Verdict Handed Down by Appellate Court

June 4, 2015 - A $90 million judgment against ABM Industries, Inc. was first overturned by an appellate court and is now to be reviewed by The Supreme Court of California. The judgment was handed down in response to a suit alleging that ABM Industries, Inc. kept a class of security guards “on call” during breaks. Appellate court held overturned the settlement on the grounds that California employment law doesn’t require that employers relieve workers of all their work duties while they are on break.

The damages award was vacated by appellate court in December 2014 and is now set to be reviewed by The Superior Court of California.

ABM Industries, Inc., a facilities management company, allegedly had a policy in place requiring that their security guards carry their radio during break times. This effectively left them on call even during their breaks/rest times employees claim is a violation of California labor law.

The three-judge appellate court panel supposedly voted unanimously to reverse the summary judgment ruling; vacating the $90 million award. The basis for their decision was that while they were required to keep their radios on during their breaks, they used the time to engage in non-work activities. They pointed out that the question at hand was whether or not being “on call” constitutes performing work and their conclusion was that it does not.

ABM feels that the claims that requiring their employees to carry radios during breaks constituted a failure to provide them with adequate rest breaks were “absurd.”

The case began in 2005 with claims made by lead plaintiff, Jennifer Augustus, that ABM’s policy requiring guards to carry radios during break times was in violation of California state’s Labor Code.  In February 2012, the security guards filed for summary judgment requesting that Superior Court Judge John Shepard Wiley award approximately $103 million in damages in response to the allegations.

Judge Wiley’s response came in July 2012 when awarded the security guards $89.7 million in damages on account of improper breaks throughout the 10-year period addressed by the class action and including over 14,000 class action members (past and present ABM security guards).

ABM, of course, appealed Judge Wiley’s decision,  claiming that it was unprecedented and in defiance of both law and reason. They also claimed that letting the ruling stand would end up crippling California companies without even providing any actual benefit to California employees. They claimed that, if upheld, the decision would force California employers to require that employees take their rest breaks outside of work sites and without their own personal cell phones.

The question quickly became one of differentiation between meal breaks and rest breaks and which labor codes applied in which instance. In December, the panel noted that the state’s Industrial Welfare Commission wage order that covers rest breaks did not actually include reference to requiring that employees be “relieved of all” work duties. This in comparison to the section covering meal breaks where it was covered. They concluded that the IWC knew what they were doing when they differentiated between the two. As of January, plaintiffs in the case were still debating their options and planning their next move in regards to the case.

If you need additional information on how to respond to workplace requirements regarding meal times, rest breaks and relief from work duty; contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.