Wage Law

The Supreme Court has denied a petition to modify the opinion in Murphy v. Kenneth Cole Productions, Inc., filed by Steven Drapkin, who argued the defense side for amicus curiae. The petition sought to add a blurb stating that the Supreme Court was not expressing any view about about the applicability of the many consequences, adverse to employers, that could will flow from the Supreme Court's designation of the hour of pay as a wage, and which formed the basis of many of the defense arguments as to why the hour of pay shouldn't have been declared a wage. The opinion will continue to be discussed at great length over the next few months in courtrooms, at seminars and in places like this blog, but with the denial of this petition, the underlying material for the discussion has finally been completed.

With notable exceptions, such as Sheppard Mullin, with its Labor & Employment Law Blog, larger firms tend not to discuss important cases on their firm websites for a few days or weeks. By now, however, most of the large firms who have anything interesting to say about Murphy v. Kenneth Cole Productions, Inc. have said it. Here is a collection of what they had to say:

Littler Mendelson has published this: Missed Meal & Rest Periods Will Cost Employers More Following California Supreme Court Decision. Their first article, on the first appellate decision in Murphy ("an early Christmas present") can be read here. Their new one begins with "Everything you need to know about how the Kenneth Cole decision will cost you." That'll get an employer's attention.

Nixon Peabody wrote: California Supreme Court increases stakes for violations of meal and rest period rules. After calling the decision infuriating, they list several different ways an employer could be found liable for break violations, and end by listing ways to modify employer behavior to prevent liability. Curiously, they note that Murphy "leaves open the possibility" that a court would permit a fourth year of recovery. We don't see that as an issue that remains unanswered, and consider it well-established that a wage can be recovered under the UCL for four years.

Sedgwick Detert wrote: California Supreme Court Triples Employers' Exposure. In it, they claim to have found a "silver lining" in that the Murphy decision is that the court disagreed with the plaintiff's argument that the premium pay exposure was two hours per day if both the meal and rest periods were missed. However, that issue was never part of the appeal, and the Supreme Court did not discuss, much less hold, that a plaintiff can only recover meal period pay or rest period pay, but not both, in a single work day. Perhaps that will be the next big issue in meal and rest period litigation.

Jackson Lewis wrote: California High Court Triples Exposure for Missed Meal and Rest Periods, which includes a good laundry list of practices that employer's should avoid and practices employers should implement, such as, if a meal or rest period is interrupted, it must start over from the beginning, so that the break is a "net" 30 or "net" 10 minutes.

Fenwick West wrote California Supreme Court Rules that Payment for Missed Meal and Rest Periods is a "Wage" Subject to Three-Year Statute of Limitations, saying that the decision "not only significantly increases employers' potential exposure for meal and rest period violations, but it is also a sobering reminder to employers to ensure that their exempt employees are properly classified."

Bingham McCutchen wrote the similarly entitled: California Supreme Court Rules Payments for Missed Meal and Rest Periods Are Wages Subject to Three-Year Statute of Limitations, with a list of four lessons learned by employers.

Ford & Harrison wrote: California Supreme Court Classifies Pay for Missed Meal/Rest Breaks as Wages, which preaches this truth: "California wage and hour law is very different from the federal FLSA, so simply complying with the FLSA is not enough to protect employers from significant exposure in California." If more employers understood that, our caseload would be cut in half.

Pillsbury Winthrop wrote: Meal and Rest Period Claims: California Supreme Court Hands Employers a Setback, observing that the decision "will clearly result in the filing of even more meal and rest period cases against employers. Jury awards and settlement amounts will very likely increase." We think that is is technically correct that there will be even more of these cases filed, but there would be more cases filed either way. The real impact is that the amounts of the awards and settlements will increase.

Proskauer Rose wrote: California Supreme Court Gives Employers No Break. The gist of the article is that the court took it upon themselves to quadruple employers' liability for meal period and rest period violations. Of course, we've never seen it that way. Our view is that the Supreme Court has undone the appellate court's mistaken slashing of employee claims for meal and rest period pay.

Sidley & Austin wrote: California Supreme Court Refuses to Give Employers a “Break”, which included a list of six issues that they believe to be unresolved after Murphy: • Are the meal and rest period provisions adopted by the Industrial Welfare Commission legally void? • Is Section 226.7 limited to a total of one hour of pay per day for meal and rest period violations, regardless of the number of violations? • Does the duty to “provide” a meal period mean only that employees must be afforded the opportunity to take a meal? Or, must the employer force the employee to eat? • Are statutory attorneys’ fees and interest recoverable for Section 226.7 actions? • Are late wage payment penalties triggered by a failure to make Section 226.7 payments? • Are Unfair Competition Law claims permitted for purposes of collecting Section 226.7 payments? We think have of those issues are already decided.

Fisher & Phillips wrote: California Supreme Court Ruling Could Quadruple Potential Damages For Meal and Rest Period Violations, which was the first defense firm article that reinforced our belief that we might be correct in our decision to start adding paystub violation claims (Labor Code section 226) to our meal and rest period cases.

And Hogan & Hartson wrote: California Supreme Court Rules in Favor of Employees in Long-Awaited Meal and Rest Break Case, which echoed our opinions. "Employees who have quit or been terminated without receiving all Section 226.7 pay can now assert claims under Labor Code section 203 ... employees also may seek penalties for the failure to provide properly itemized wage statements if Section 226.7 pay is not included on pay stubs or other wage statements ... [and add] claims for unfair competition and conversion, previously not available for the recovery of penalties ... and employers will face increased claims for punitive damages and significant penalties under the Labor Code Private Attorneys General Act because the argument that such damages constitute a double penalty is no longer viable now that Section 226.7 pay has been declared not to be a penalty. Finally, employees now have a greater chance of collecting attorneys fees and statutory interest in actions based solely on meal and rest period violations." The authors of that update also recently published an article about Murphy in the Daily Journal. The link is subscription-only.

If your firm isn't mentioned, it isn't because we meant to skip you. The problem is that you haven't figured out how to make Google love you. We noticed, interestingly enough, that a Google search for "murphy kenneth cole" puts a pair of Wage Law posts at the top, but not the post we'd have chosen, nor the one we think most relevant. We haven't figured Google out completely ourselves, but we think one reason we're near the top is that we apparently have 45 different pages that discuss the Murphy case.