California Managers Waiting Nervously For Ruling

Employment law attorneys and human resources directors throughout the state anxiously wait for the California State Supreme Court to rule in a case that could have wide ranging implications. Depending on how the justices rule in Brinker Restaurant Corp. vs. Superior Court, the decision may cost businesses millions of dollars and place new responsibilities in monitoring meal and rest breaks for their employees, or it may mean a whimper rather than a bang for pending class action lawsuits. Since 2008, the Brinker case has wound its way through the state court system. At its simplest it seeks clarification of whether employers must merely offer meal and rest breaks and leave it to the employees to take them, or if the company must mandate the breaks be taken. It’s the latter that opens the door to ensuring the 30-minute meal period is taken away from the employees desk, that it not be interrupted, and that the full time be taken and recorded. “On some level what employers are hoping for is a reasonable approach where (the justices) say you are not responsible for babysitting the employees,” said Richard Rosenberg, an attorney with Ballard Rosenberg Golper & Savitt LLP in Glendale. While Brinker is the most anticipated case it is not the only one state and federal courts judges will rule on that affect the business community. Other cases Also pending are cases involving holding corporate officers and directors liable for failure to pay overtime and wages; allowing unprofessional comments from management in termination cases; if an arbitration clause can cover wage claims; and if nonresidents fall under California wage laws when working for a California company. The last case was in the federal 9th Circuit Court of Appeals until the justices withdrew their opinion to allow time for the state Supreme Court to give its guidance. With the courts shaping relations between employers and their workers, human resources managers and directors don’t have the option to ignore developments taking place in courtrooms. In the HR consultancy run by Michael Colitti, he and his business partner reinforce to their clients the importance of keeping up with changes in employment law. “They are not just paper pushers,” said Colitti, of Holman HR in Northridge. “It is much more important to have an understanding on the legal issues that are out there.” That can be difficult to do if the resources to stay current are not given to the human resources department. Companies without a dedicated HR director can also find themselves in trouble because they are unaware they have to record when an employee takes a rest break. “I hear that all the time; I really do,” said Dawn Kaplan, a consultant who doubles as the human resources director at the Child Care Resource Center. In the Brinker case, however, it was an owner of chain restaurants (Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy) that came under fire for violations of not giving meal breaks to employees working five or more hours; and not giving a 10-minute rest break for every four hours worked. Employees can receive an extra hour of pay for a violation. Until the Supreme Court gives its decision, HR consultants and employment law attorneys advise clients to enforce the rules and documents when employees are taking the break. If there is a familiar refrain it is about the difficulty of following up the breaks are taken. There can be instances where stopping for a half hour lunch is inconvenient, and while the employee doesn’t knowingly break the law their employer can still be held liable. Policing employees “We hope the case goes in a direction to make it available but we don’t have to police it,” said Lori Crawford, vice president of human resources for internet and social networking provider United Online. Plaintiff attorneys tend to include rest and meal break violations in any type of workplace lawsuit, including discrimination, because of the potential payout at the end of the case. With an employee being able to collect up to an extra two hours of pay for missing the breaks, the cost to a business can quickly add up if found in violation. “That is why Brinker is so huge,” Rosenberg said. For the past two years Rosenberg’s firm has hit clients over the head with the importance of being in compliance. But for every company that has a lawyer giving that advice there are many others lacking representations. That is why for smaller companies it becomes even more difficult to stay in compliance and opening themselves up to litigation. “They do not have the wherewithal to keep track of the records,” Rosenberg said.