Wage Law

Q:  If an employer doesn't let the employee take her lunch, doesn't it owe her overtime for that missed lunch break?

A:  California's overtime and meal period laws imposed entirely separate obligations to the employer. A missed meal period does not necessarily mean the employer owes overtime. There are times when that is the case, however. For example, if the employer had the employee clock out for the meal period, but the employer was required to work during the meal period, and also worked 8 hours on the clock that day. In that example, the employee's meal period should count as hours worked, and since the additional time makes the employee's workday exceed 8 hour, and the additional time should be paid at one and a half times the employee's regular rate of pay.

Independent of the overtime issue, however, an employer who causes an employee to miss a required meal period will owe the employee an extra hour of pay at the employee's regular rate, pursuant to Labor Code § 226.7.

Under Labor Code § 512, the employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived.

If the employer requires the employee to remain on premises during the meal period, it must be a paid meal period, whether or not the employee is relieved of all duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

This is off-topic, but it amused us, so we share with you this opening paragraph from the published opinion in National Football League et al. v. Fireman's Fund Insurance Co.

The National Football League has returned to Los Angeles, but not, as many Angelenos hope, bearing the gift of a new home team. The league administration and its intellectual property marketing arm have been sued in multiple states by dozens of former players alleging lifelong brain damage from on-field injuries dating back to the 1950's. In this case the plaintiffs, National Football League and NFL Properties LLC, seek a Los Angeles Superior Court declaratory relief judgment regarding the coverage duties of 32 insurance carriers pursuant to some 187 commercial liability policies that were issued over a 50-60 year period. All the same entities are parties to parallel coverage actions filed by some of the insurers in New York state courts at approximately the same time as the California case.

You can download here in PDF or Word.

On June 6, 2013, the State Bar Labor & Employment Law Section will be presenting a Webinar entitled The Never-Ending Story – Arbitration Agreements and the Law. The program runs from 12 p.m. to 1:30 p.m. and offers 1.5 hours of participatory MCLE credits. The cost is $82.50. Advance registration is required and can be done at this link.

In Bluford v. Safeway Stores, Inc. (2013) __ Cal.App.4th __, the 3rd District considered an appeal from an order denying certification of a class action arising from allegations of improper payroll wage statements. Plaintiff Kenneth Bluford alleges that Safeway violated statutory and regulatory laws requiring it to provide its employees with paid rest periods, earned meal periods, and sufficiently itemized wage statements. The trial court denied the motion to certify a class, ruling that individual issues predominated over common issues on the rest period and meal period claims, and that plaintiff failed to allege a common injury resulting from the inadequate wage statements.The court of appeal reversed and remanded with instructions to enter an order granting the motion for class certification.

Insufficient evidence supports the trial court’s ruling, as common issues predominate over individual issues, and plaintiff in fact alleged a common injury resulting from the wage statements. We order the trial court to grant plaintiff’s motion.

You can download the full opinion in Bluford here in PDF or Word.

Have you seen the epic meltdown on Chef Gordon Ramsey's show "Kitchen Nightmares" feating Amy's Baking Company? This is quite possibly the greatest public relations failure by a small business that I've ever witnessed. As a wage and hour lawyer, however, I was particularly amazed by the scene where owner Samy Bouzaglo greedily pockets his waitress's tip. Keeping employee tips is a violation of wage and hour law. It doesn't matter than you pay them $8 an hour. Amy's Baking Company was foolish enough to do it with the cameras rolling.

"A tip is the sole property of the tipped employee regardless of whether the employer takes atip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby anypart of the tip received becomesthe property of the employer. For example, even where a tipped employeereceives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turnover his or her tips to the employer."

U.S. Department of Labor Wage and Hour Division (Revised March 2011) Fact Sheet #15: Tipped Employees U nder the Fair Labor Standards Act (FLSA)

California law also provides that tips belong to the employees who earned them.Labor Code § 351.

http://www.dir.ca.gov/dlse/FAQ_tipsandgratuities.htm

Unfortunately, Samy and Amy Bouzaglo of Amy's Baking Company operate in Scottsdale, Arizona. So we can't represent their employees. That bums us out a bit. We'd even do it pro bono.

To watch the owner steal his workers' tips, just watch here. At 6:12, a customer leaves a $10 tip and Samy pockets it unapologetically and then brags about being a gangster.

 

He may not just be popping off about the gangster stuff, either. Amy Bouzaglo, fka Amanda Patricia Bossingham, has a felony record.