11/17/2010 Update: The California Supreme Court granted review of Kirby v. Immoos Fire Protection. We will have to wait for the Supreme Court’s decision to determine if I was correct.
In 2000, the California legislature added some teeth to California’s meal and rest break laws. Prior to 2000 employers were required to give employees meal and rest breaks, but there was no penalty if the employer refused to allow employees to take their legally mandated breaks. In 2000 the legislature enacted California Labor Code Section 226.7 which requires employers to pay an additional hour’s pay for each day in which a meal and/or rest break is not provided.
The California Supreme Court later decided that the additional hour’s pay is a “wage” and not a “penalty.” See Murphy v. Kenneth Cole. Since that time we have since a proliferation of suits alleging a violation of Labor Code Section 226.7. If court filings are to be believed there is hardly an employee in California that is allowed to take the required meal and rest breaks. I rarely see an overtime case filed that does not include a missed meal and/or rest break claim.
When the court first decided Murphy I recall thinking about how it would affect the attorneys’ fees provisions in the Labor Code. Under Labor Code Section 1194 the prevailing employee is entitled to recover his/her attorneys’ fees in an action for unpaid minimum wage or overtime. The employer can never recover its attorneys’ fees in an unpaid minimum wage or overtime case. Labor Code Section 218.5, however, allows the “prevailing party” to recover attorneys’ fees in any action for nonpayment of wages other than minimum wages or overtime.
Based on Murphy and the language of Labor Code Sections 218.5 and 1194, I theorized that an employer that successfully defeats a claims for unpaid meal and/or rest breaks would be entitled to recover its attorneys’ fees. In the common unpaid overtime case where the employee “throws in” a claim for missed meals/rest breaks I believe the employee is at risk of having to pay a portion of the employer’s attorneys’ fees even if the employee prevails on the unpaid overtime claim unless the employee also prevails on the missed meal/rest break claim.
Well, the Third Appellate District agrees. In Kirby v. Immoos Fire Protection (10 C.D.O.S. 9451), the court came to the same conclusion I did: because a claim for missed meal/rest breaks is a claim for “wages” other than minimum wage and overtime, an employee who does not prevail on those claims is liable for the employer’s attorneys’ fees incurred in defending against those claims.
Attorneys representing employees in unpaid overtime and minimum wage cases need to carefully consider whether to include the unpaid meal/rest break claim. Considering the fact that employers are not required to force employees to take rest breaks (whether this is true with regard to meal breaks remains to be seen) or to track the rest breaks (which is not the true with regard to meal breaks) means prevailing on a rest break case may be difficult. Good attorneys will carefully interview their clients, and hopefully other percipient witnesses, before deciding to add the rest/meal breaks claim as a matter of course.
Employers should not treat this as a license to violate the law. To the contrary. Although you may be able to offset a judgment against you by the amount awarded to you in attorneys’ fees, actually collecting an award of attorneys’ fees is usually problematic at best. The best policy is to know the law, follow the law, and ensure you have accurate records reflecting what occurred. But you already knew that!The Law Office of Phillip J. Griego 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341 Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
Are you considering switching employers? Did you just get a new boss? Ever wondered what your subordinates are saying about you? If so, you may want to check out ebosswatch.com. According to the site, you can: “Search the eBossWatch National Sexual Harassment Registry during the job interview process to make sure your potential boss or job candidates haven’t been the subject of a sexual harassment complaint.” You can also “Help other job seekers by warning them about a bad boss or recommending a great boss. It takes less than a minute to rate your boss, and you remain completely anonymous.”
The site may be encouraging to employees, and may be attractive to employees that want to vent about a supervisor but don’t feel they can confront their bad boss. My concern is that, like other similar sites dealing with scams or ripoff reports, sometimes the information provided can be very one-sided, unfair and even untrue. One person’s experience does not a bad-boss make.
The fact that the reviews are anonymous means that someone can post wholly false and misleading statements without fear of repercussions. I predict, however, that someone is going to say something completely untrue and the site will eventually be ordered to divulge the name of the poster and that person will find themselves embroiled in a defamation suit. So, be careful before you write that scathing report about your “big bad boss.” I usually advocate a more direct approach when dealing with a bad boss, such as reporting the boss to HR or a higher level employer. At least then the company is on notice of the problem and has the opportunity to correct the situation.
With the ever-increasing role of user reviews and online social media, I suspect we will be seeing more and more of these types of sites.The Law Office of Phillip J. Griego 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341 Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
A recent article in the Sydney Morning Herald reports a new video game, “Hey Baby,” created as “interactive artwork and social commentary designed to develop male empathy.” Players take on the role of a woman walking down the street. The woman is repeatedly confronted with cat-calls and other sexual advances and comments. The player then chooses how to respond to the remark, either with a polite, “Thank you for the compliment” or a more aggressive gunshot to the head.
One reporter who reviewed the “game” was amazed at the level of empathy he experienced. While the game may not change every mind, it does offer men the opportunity to experience what can be viewed as an unending onslaught of inappropriate and unwelcome advances. An interesting aspect of the game is that regardless of how the player deals with the remarks, the comments keep coming, indicating that even extreme violence is an unhelpful response to the situation.
The article can be viewed here.The Law Office of Phillip J. Griego 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341 Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
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