Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) California Labor Code Section 512 and Wage Order No. 5 require employers to provide hourly employees with an uninterrupted lunch break of at least 30 minutes, wherein the employee is allowed to leave the premises and is relieved of all duty for the entire period.

In 2001, California made the laws regarding worker breaks even tougher by imposing a monetary penalty on employers who violate mandatory break laws. Under that requirement, employers must pay one hour of wages for a missed half-hour meal break.

On April 12, 2012, the California Supreme Court reached a pivotal decision in this case, which thrilled employers, particularly those in the food service industry. This case asked two questions:
1) Whether California employers could avoid liability for meal break penalties by maintaining policies that allow breaks to be taken even if they did not strictly police their implementation; and,
2) whether the number of meal breaks was based on the total number of hours worked by the employees.

In this long-awaited opinion, the California Supreme Court held that “An employer’s duty with respect to meal breaks under both [the Labor Code and Wage Orders] is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”

On the question of breaks, the Court found that the Labor Code was unsupportive of the plaintiff’s claims in that the Labor Code “requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work [absent a waiver].”
The Court also made clear, with regard to paid rest breaks that California law required only “a good faith effort” from employers, to permit rest breaks in the middle of each work period, but that employers could deviate from “that preferred course where practical considerations render it infeasible.”

This holding gives an employers a welcome relief from having to police employees regarding wage and hour claims, and alleviates additional costs to employers who, for sound business reasons, are oftentimes caught in the web of penalties for unintentional acts.

Kirby v. Imoos Fire Protection (2012) WL 1470313 In conjunction with the Brinker case, the California Supreme Court provided Defendants another tantalizing result to whet their very dry palate. Here, the Court denied a Plaintiff who sued for meal and rest break violations under Labor Code Section 226.7, attorneys’ fees under any statute, making it unfeasible for a Plaintiff to sue for wage and hour violations. This makes for a very interesting turn of events in a pro-Plaintiff state.

With various statutes allowing a victorious Plaintiff an award of attorney’s fees, including Labor Code Sections 1194 and 218.5, one wonders whether the tremendous rise in wage and hour claims during the past year have taken its toll on the judicial branch. This, of course, is highly detrimental to Plaintiffs and Plaintiffs attorneys, who will likely not take on meal and break violation cases without the attorney fees safeguard.

United States v. Nosal, 2012 WL 1176119 (9th Cir. 2012) (en banc) This case was commenced as a criminal proceeding under the Computer Fraud and Abuse Act (“CFAA”), by the United States Government against the former employee of a company after the employee obtained computer information from the employer company for the purpose of defrauding that employer and setting up a competitive business. A broad en banc panel of the Ninth Circuit Court of Appeals held that the CFAA was intended by Congress to criminalize hacking by outsiders and not to reach the activities of employees who had exceeded their authorized access.

Cash v. Winn, 2012 WL 1662629 (Cal. Ct. App. 2012) In this case the Court of Appeals denied overtime compensation to a person hired as a personal attendant. Plaintiff, a caregiver who was not a licensed nurse, cared for Defendant, an elderly woman, in Defendant’s home. After she left her employment, Plaintiff sued Defendant, claiming that Defendant had failed to pay Plaintiff overtime wages. Defendant responded to Plaintiff’s claim by denying her obligation to pay Plaintiff wages given that Plaintiff was not a “personal attendant” within the meaning of California Wage Order No. 15, and thereby exempt from receiving overtime compensation. At trial, the court instructed the jury that a personal attendant is a person who is employed to “supervise, feed or dress” an elderly person and explained that “supervision” includes assisting the elderly person with various daily living tasks. The trial court found in Plaintiff’s favor and awarded Plaintiff over $123,000. Defendant appealed and the Court of Appeal reversed the judgment on the ground that the trial court mistakenly instructed the jury as to the limited definition of the term ” ‘supervision,’ ” which did not include health care functions.

Ross v. Ragingwire, 42 Cal.4th 920. In this case the California Supreme Court held that an employer may lawfully terminate an employee (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use if for lawful medical purposes under California law. The Ninth Circuit’s recent holding that the Americans with Disabilities Act (“ADA”) does not protect individuals who claim discrimination against them because of medical marijuana use indicates the erosion of Plaintiff’s claims based on marijuana use.

It is, however, important for employers to understand the Courts’ reasoning before making termination decisions based on an employee’s or a prospective employee’s marijuana use. Employers should be aware that it is still unlawful to discriminate against an applicant or employee for an underlying disability (for which the individual may be using the medical marijuana) even if, according to this case law, it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons).

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