Employment Law
Strategist
Managing the
Compensable
Workday in a New
Electronic World
By Christopher A. Parlo and
Michael J. Puma
The Fair Labor Standards Act
(FLSA) requires employers to
pay their employees a minimum
wage for all hours worked in a
workweek and to pay overtime
to those nonexempt (i.e., hour-
ly) employees in any workweek
that exceeds 40 hours. All time
from an employee’s first princi-
pal activity of the day until the
last principal activity, excluding
meal periods, is compensable.
History
When Congress passed the
FLSA in 1938, measuring (and
controlling) the length of an em-
ployee’s workday was relatively
easy. An employee showed up to
work, punched a time-clock (or
signed a log sheet, or followed
some similar method), recorded
his or her departure from the
worksite in the same manner as
used on arrival, and was paid
for the intervening time period,
excluding only the generally
preset lunch period. The routine
seemed simple enough.
Since that time, however,
the confines of both the work-
day and the workplace have
changed. Under the FLSA, em-
ployees are entitled to be paid
beginning only with their first
“principal activity,” that is, the
first activity that the employee is
hired to perform, and to be paid
only through their last principal
continued on page 5
®
Volume 17, Number 10 • February 2010
Class Litigation of Meal and Rest Period Claims
May Meal and Rest Period Claims Be Certified in a Post-Brinker World?
By Matt C. Bailey
I
n Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781, 800
(2008), review granted and opinion superseded in 85 Cal. Rptr. 3d 688 (Oct.
22, 2008), California’s Fourth District Court of Appeal substantively altered
the wage and hour landscape through its conclusion that California meal and
rest period regulations only impose a passive obligation on employers to make
breaks available. This legal finding, according to the Brinker court, renders meal
and rest period claims hopelessly uncertifiable as a class action, as the employ-
ee’s option to waive a meal or rest period requires a case-by-case inquiry into
the reason each individual break was not taken. While the Brinker decision is
currently pending review by the California Supreme Court, Brinker’s analysis is
not the be-all end-all when it comes to class adjudication of meal and rest period
claims. Regardless of the outcome in Brinker, numerous meal and rest break
theories will continue to be suitable for class adjudication.
Claims Involving Uniform Barriers to Breaks
Perhaps one of the most effective theories permitting class adjudication of
meal and rest period claims involves an employer’s imposition of a common pol-
icy and/or practice that uniformly prevents employees from accessing meal and
rest periods. Such violations predicated upon a common barrier are antithetical
of Brinker, as such violations involve: 1) a common policy ideal for classwide ad-
judication; 2) a lack of employee choice that effectively negates the “individual-
ized” waiver defense; and 3) the potential for employer liability, notwithstanding
the existence of a facially lawful meal and/or rest period policy. See e.g., Bufil v.
Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1206 (2008) (“no one dis-
putes that the wage order was posted or that there were designated areas to take
a break — these matter naught if a single-shift sole employee or sole employee
working with a trainee is not able to take an off-duty break.”).
continued on page 2
In This Issue
Brinker and Meal and
Rest Breaks. . . . . . . . . 1
What Is a Compensable
Workday?. . . . . . . . . . 1
Guns in the
Workplace. . . . . . . . . 3
Movers & Shakers. . . . 8
Verdicts . . . . . . . . . . . 8
Brinker
continued from page 1
Contrary to the holding in Brink-
er, an employer that erects barriers
to an employee’s access to breaks is
foreclosed from resting on the gen-
eral proposition that an employer
cannot be saddled with an affirma-
tive obligation to ensure that work-
ers are actually relieved of all duty.
In such circumstances, the employer
is required to “take steps to provide
employees with the opportunity to
take the required [] breaks” affirma-
tively and “[t]he onus is on the em-
ployer to clearly communicate the
authorization and permission to its
employees.” See Bufil, 162 Cal. App.
4th at 1200. An employer will be lia-
ble where it “simply assumed breaks
were taken, despite its institution of
policies that prevented employees
from taking … breaks.” See Brown
v. Fed. Express Corp., 2008 U.S. Dist.
LEXIS 17125, 17-18 (C.D. Cal. 2008).
Significantly, federal district court
opinions employing Brinker’s analy-
sis have uniformly concluded that
an employer will necessarily violate
the applicable Wage Orders by con-
structing impediments to taking “off-
duty” meal periods. See, e.g., Perez v.
Safety-Kleen Sys., 253 F.R.D. 508, 514
(N.D. Cal. 2008) (“The conclusion
that an employer may not discourage
meal breaks is also consistent with
three other recent cases in which
district courts have interpreted an
employer’s obligation under Sec-
tion 512.”); Brown, 2008 U.S. Dist.
LEXIS 17125, 17-18 (reasoning that
while an employer is not obligated
“to force employees to take breaks[,]”
an employer may be liable where “an
employer simply assumed breaks
were taken, despite its institution of
policies that prevented employees
from taking meal breaks.”); White
v. Starbucks Corp, 497 F. Supp. 2d
1080, 1089 (N.D. Cal. 2007) (reason-
Matt C. Bailey is a senior associate
with Los Angeles-based Khorrami
Pollard & Abir LLP and serves as co-
chair of the firm’s Class Action Prac-
tice Group. He may be reached at
MBailey@kpalawyers.com
2 Employment Law Strategist ❖ www.ljnonline.com/alm?emp February 2010
ing that “Cicairos should be read un-
der the facts presented by that case”
wherein the employer was found li-
Employment Law
able when the employer “knew that Strategist ®
employees were driving while eating
and did not take steps to address the EDITOR-IN-CHIEF . . . . . . . . . . . . . Stephanie McEvily
EDITORIAL DIRECTOR . . . . . . . . . Wendy Kaplan Stavinoha
situation” and imposed “management MARKETING DIRECTOR . . . . . . . . Jeannine Kennedy
policies, effectively deprived the driv- GRAPHIC DESIGNER . . . . . . . . . . Louis F. Bartella
ers of their breaks.”); Kenny v. Super- BOARD OF EDITORS
cuts, Inc., 252 F.R.D. 641 (N.D. Cal. GIL A. ABRAMSON . . . . . . . . . Hogan & Hartson LLP
2008) (reasoning that “the employee
Baltimore
DAVID S. BAFFA . . . . . . . . . . . Seyfarth Shaw LLP
must show that he was forced to Chicago
forego his meal breaks as opposed PHILIP M. BERKOWITZ . . . . . Nixon Peabody LLP
to merely showing that he did not
New York
VICTORIA WOODIN
take them regardless of the reason.”); CHAVEY . . . . . . . . . . . . . . . . . Day Pitney LLP
Marlo v. UPS, 2009 U.S. Dist. LEXIS Hartford, CT
CHRISTOPHER D.
41948 (C.D. Cal. May 5, 2009) (“To DURCHAN . . . . . . . . . . . . . . . Duane Morris LLP
the extent Marlo argues that the op- Philadelphia
portunity to take a meal break must KARLA
GROSSENBACHER . . . . . . . . . Seyfarth Shaw LLP
be a meaningful one for it to count Washington, DC
as a meal break ‘provided’ by the em- BARRY A. HARTSTEIN . . . . . . Morgan, Lewis & Bockius LLP
ployer, the Court agrees … .”).
Chicago
SHERRARD LEE (BUTCH)
Thus, where an employer employs HAYES II . . . . . . . . . . . . . . . . . Fulbright & Jaworski L.L.P.
uniform policies that commonly im- Austin, TX
GARY KESSLER . . . . . . . . . . . . Kessler & Collins
pede employees’ access to “off-duty” Dallas
breaks, such policies present com- STACEY McKEE KNIGHT . . . . Katten Muchin Rosenman LLP
mon issues that may be litigated as Los Angeles
SHIRLEY O. LERNER . . . . . . . Littler Mendelson, PC
to the class as a whole. Minneapolis
Claims Involving the ‘On-Duty’ WILLIAM C. MARTUCCI . . . . Shook Hardy & Bacon, L.L.P.
Washington, DC
Meal Break Exemption KEVIN C. McCORMICK . . . . . Whiteford, Taylor & Preston L.L.P.
Baltimore
Claims that are predicated upon
NEIL McKITTRICK . . . . . . . . . Ogletree Deakins
an improper use of the “on-duty” Boston
exemption also provide another RALPH MORRIS . . . . . . . . . . . Schiff Hardin LLP
Chicago
ground amenable to class adjudi- WAYNE N. OUTTEN . . . . . . . . Outten & Golden LLP
cation. An “on-duty” meal break — New York
which is a codified exception to the PATRICIA ANDERSON
PRYOR . . . . . . . . . . . . . . . . . . Taft, Stettinius & Hollister LLP
requirement that “off-duty” breaks Cincinnati, OH
be given — is an affirmative defense MARK N. REINHARZ . . . . . . . Bond, Shoeneck & King, PLLC
Garden City, NY
that may be utilized only if three el-
ROSANNA SATTLER . . . . . . . . Posternak Blankstein & Lund LLP
ements are established by the em- Boston
ployer. See, e.g., 8 CCR 11040(11)(A) JOHN D. SHYER . . . . . . . . . . . Latham & Watkins LLP
New York
(“[a]n ‘on duty’ meal period shall be SCOTT T. SILVERMAN . . . . . . Akerman Senterfitt
permitted only when the nature of Tampa, FL
the work prevents an employee from WILLIAM J. WORTEL . . . . . . . Bryan Cave LLP
Chicago
being relieved of all duty and when
by written agreement between the Employment Law Strategist® (ISSN 1069-3741) is published
by Law Journal Newsletters, a division of ALM. © 2010 ALM Media,
parties an on-the-job paid meal pe- LLC. All rights reserved. No reproduction of any portion of this
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A Right To Bear
Arms in the Office?
A Look at Recent Law
Concerning Guns in the
Workplace
By Rosanna Sattler and
Nancy J. Puleo
The idea of employees bring-
ing guns to work strikes fear in the
hearts and minds of employers ev-
erywhere. Workplace violence is ris-
ing in the face of layoffs, furloughs,
and the economic pressures suffered
by employees. Employers now must
balance the duty to maintain a safe
workplace with employees’ right to
bear arms under the Second Amend-
ment of the Constitution of the Unit-
ed States, their rights under state con-
stitutions, and laws allowing guns at
work — which is a new and growing
trend in employment legislation.
The Import of the
Occupational Health
And Safety Act
Section 654(a)(1) of the Federal
Occupational Health and Safety Act
(the “Act”), also referred to as the
“general duty” clause, mandates that
each employer “shall furnish to each
of its employees employment and a
place of employment which are free
from recognized hazards that are
causing or are likely to cause death
or serious harm to his employees.”
While the United States Occupa-
tional Safety and Health Administra-
tion (“OSHA”) has issued voluntary
guidelines and recommendations for
employers seeking to reduce the risk
of workplace violence, it has not pro-
mulgated any mandatory standards.
In February 2009, the Tenth Cir-
cuit Court of Appeals considered the
Rosanna Sattler, a member of this
newsletter’s Board of Editors, is a
partner and a member of Posternak,
Blankstein and Lund’s Executive
Committee. Her extensive litigation
practice includes business litigation,
environmental, employment and in-
surance coverage disputes. Nancy
Puleo is an Associate in the firm’s Em-
ployment and Litigation Departments.
February 2010 Employment Law Strategist ❖ www.ljnonline.com/alm?emp 3
issue of preemption under the Act,
in a case brought by a group of em-
ployers challenging Oklahoma’s fire-
arm laws, which restricted employ-
ers from banning guns in workplace
parking lots. See Ramsey Winch, Inc.
v. Henry, 555 F.3d 1199 (10th Cir.
2009). The employers argued that
Oklahoma’s law violated the work-
place safety guidelines issued by
OSHA. The court unanimously ruled
that Oklahoma employees have the
constitutional right to keep guns in
their vehicles at work.
In connection with the Ramsey
Winch case, in 2006, an Oklahoma
lawmaker wrote to OSHA to inquire
whether guns in the workplace were
a recognized hazard. The Agency an-
swered the lawmaker’s question by
stating: “Gun-related violence is not
a recognized occupational hazard in
the industry as a whole.” The Tenth
Circuit held that OSHA “is aware
of the controversy surrounding
firearms in the workplace and has
consciously decided not to adopt a
standard.” The court found that the
“Act is not meant to interfere with
states’ exercise of police powers to
protect their citizens,” and discussed
OSHA’s reluctance to regulate, and
courts’ reluctance to find preemp-
tion, in areas dealing more generally
with social policy and crime preven-
tion, rather than specific workplace-
related conditions and hazards.
The court viewed the Oklahoma
law as an example of general regu-
lation under the state’s police pow-
er. In the absence of clear congres-
sional intent to preempt state law in
that area, the court did not find pre-
emption under the Act’s general duty
clause. Similarly, in 2008, a Florida
District Court rejected an OSHA pre-
emption challenge to Florida’s gun
law. See Florida Retail Federation,
Inc. v. Attorney General of Florida,
576 F. Supp.2d 1301 (N.D. Fl. 2008).
Should OSHA change its mind, we
can expect further challenges to
state laws allowing gun-toting em-
ployees at work.
The Supreme Court’s Decision
In District of Columbia v. Heller
In 2008, the United States Su-
preme Court addressed rights under
the Second Amendment in District
of Columbia v. Heller, in connection
with a local law banning the posses-
sion of handguns and requiring all
other firearms to be kept at home,
disassembled or trigger-locked. See
District of Columbia v. Heller, 128
S.Ct. 2783 (2008). The Supreme
Court held that the Second Amend-
ment protects an individual’s right
to bear arms. It then struck down
the District of Columbia law be-
cause it violated that right. How-
ever, the Court noted that the right
secured by the Second Amendment
is not unlimited. The Court recog-
nized the validity of “longstanding
prohibitions” on the possession of
firearms by felons and the mentally
ill. It also recognized laws prohib-
iting firearms in “sensitive places,”
such as schools and government
buildings, as well as laws imposing
conditions and qualifications on the
commercial sale of firearms.
The Supreme Court’s decision in
Heller leaves a lot of questions unan-
swered. For example, the Court de-
clined to establish a standard against
which gun control laws will be mea-
sured; it did not address whether the
Second Amendment affects the laws
of the individual states differently
from those in the federally controlled
territory of the District of Columbia,
whose status is unique; the Court did
not address whether the right to bear
arms inside the home for self-defense
also extends to a person’s car or his
place of work; and the decision did
not address clearly when safety con-
cerns outweigh an individual’s right
to bear arms. In light of the Heller
decision, it is unclear how the Court
will balance employer safety require-
ments against an individual’s rights
under the Second Amendment in the
future.
Interplay Between State
And Federal Law
In May 2009, the Montana Legis-
lature passed a law asserting that
guns manufactured and sold in
Montana to people who intend to
keep their weapons in Montana
are exempt from federal gun reg-
istration, background checks, and
continued on page 4
Right to Bear Arms
continued from page 3
dealer licensing rules because no
state lines are crossed. Montana will
take the position that its “made in
Montana” guns are unique and suffi-
ciently segregated to be outside fed-
eral regulations. That principle will
probably be tested in court. There
may well be a decision over how far
the federal government’s regulatory
authority extends. Similar measures
have been introduced in Texas and
Alaska. The federal government has
argued that it has authority to regu-
late firearms under the interstate
commerce clause of the U.S. Con-
stitution because they can so easily
be transported across state lines. If
the Federal Bureau of Alcohol, To-
bacco and Firearms (“ATF”) issues a
determination that the manufacture
of these firearms is illegal without
federal dealership licensing, the is-
sue will probably make its way to
the United States Supreme Court.
Recently Enacted
State Laws
At press time, at least 13 states
had passed legislation banning em-
ployers from prohibiting firearms in
employees’ vehicles at work. Alas-
ka, Arizona, Florida, Georgia, Indi-
ana Kansas, Kentucky, Louisiana,
Minnesota, Mississippi, Nebraska,
Oklahoma, and Utah enacted laws
that place some limitations on an
employer’s right to prohibit guns
in cars parked on the premises of
the employer. Similar legislation is
pending or has been considered in
Alabama, California, Missouri, Mon-
tana, New Hampshire, Pennsylvania,
South Carolina, Tennessee, Texas,
Virginia and Wisconsin.
Employers that are required to al-
low firearms to be stored in employ-
ees’ vehicles on their property have
been concerned about liability for
injuries and damage caused by those
firearms. To address these concerns,
states such as Alaska, Florida, Geor-
gia, Louisiana, Oklahoma, and Mis-
sissippi have included civil liability
waivers in their parking-lot firearms
laws. Typically, these provisions im-
munize employers from state liabil-
4 Employment Law Strategist ❖ www.ljnonline.com/alm?emp February 2010
ity arising from compliance with the
law; however, they do not protect
employers from liability under the
federal law such as the general duty
obligations under the Act.
Some states have also included
exceptions for certain types of park-
ing areas, vehicles, and industries.
These exceptions allow employers
to establish or maintain prohibi-
tions on firearms in parking areas
when certain criteria are met, such
as: secured parking areas, company
vehicles, and special types of em-
ployees, e.g., those involved in na-
tional defense, aerospace, and nu-
clear power generation.
The following illustrates the posi-
tions of various states on the issue
of gun control in the workplace.
Arizona
On May 13, 2009, the Arizona State
House of Representatives passed a
bill that would permit workers to
store their firearms in their locked
vehicles.
Texas
In March 2009, the Texas Senate
unanimously approved a bill that
would restrict an employer’s right to
prohibit an employee who holds a
license to carry a concealed hand-
gun from keeping a legal firearm in
a locked, privately owned, vehicle in
an employer-controlled parking lot
or garage. The law would also create
a new cause of action for employees
who are terminated for storing a fire-
arm in compliance with the statute.
There are a number of significant
exceptions including allowance of
employers to enforce a policy, which
prohibits employees from conceal-
ing the firearm from plain view. Also,
restrictions may be placed on use of
parking areas for the general pub-
lic if an alternative location on the
employer’s property exists. Accord-
ing to the bill, which at press time
had still not passed, the employer
would have the option of providing
an alternative parking area for those
employees with firearms. Employers
may prohibit an employee from car-
rying a firearm on business prem-
ises or in a vehicle owned or leased
by the company. Employers cannot
be sued under Texas law for dam-
ages that result from a firearm if it is
stored in accordance with the law.
Utah
On March 31, 2009, Utah’s Gov-
ernor signed two bills into law: one
allows the storage of firearms in the
employee’s locked vehicle while at
work; the other allows employees
to choose how they carry a hand-
gun for self-defense (i.e., open, con-
cealed, loaded or unloaded).
Florida
In July 2008, after a three-year
fight in the state legislature, Florida
enacted the Preservation and Protec-
tion of the Right to Keep and Bear
Arms in Motor Vehicles Act. Em-
ployers and other business owners
can no longer prohibit employees,
customers, vendors or other “invi-
tees” from keeping a firearm locked
in a parked car while conducting
business at the facility. No “Right to
Carry” license is required. The new
law requires the Florida Attorney
General to bring claims on behalf of
employees or customers against em-
ployers or businesses. The Attorney
General can negotiate a settlement;
however, individuals whose rights
have been violated under the law
still have the right to bring a civil
action. The law also provides a fine
of $10,000 for each violation.
Georgia
In 2008, Georgia passed the Busi-
ness Security and Employee Privacy
Act, which expanded the areas in
which holders of firearms licenses
may legally carry concealed weap-
ons and places some limitations on
employers’ rights. Similar to the Flor-
ida law, the Georgia law prohibits
employers from banning concealed
weapons on company property. It
also places significant limits on an
employer’s right to search vehicles
parked on site. Unlike Florida’s law,
however, Georgia’s law does not ap-
ply to employers that own the em-
ployee parking lot property. It pre-
serves the rights of the employer, as
a property owner, to restrict access
by prohibiting concealed weapons.
The Georgia law does not permit
the employer to search the employ-
ees’ vehicles even if parked at the
continued on page 5
Right to Bear Arms
continued from page 4
employer’s place of business, un-
less there is reason to believe that
the employer might present an im-
mediate threat to the health, life, or
safety of others. The employee must
consent to the search, which may
defeat the purpose. Also, if there
is consent, then query whether the
exception is needed. Further, if an
employee is subject to disciplinary
action, employers may revoke the
right to bring concealed weapons
on the property. This provision does
not seem effective, as an employee
subject to discipline may well be a
person likely to commit violence in
the workplace. Finally, company-
owned vehicles are exempt.
Alaska
In Alaska, employers are pro-
hibited from establishing policies
banning employees from bringing
weapons to company parking lots.
Tri-State Decision
A 2005 Fifth Circuit decision,
which covers Texas, Louisiana, and
Compensable Workday
continued from page 1
activity. However, those concepts do
not necessarily include everything an
employee might do to get ready for
work at the beginning of the day, or
that they may do after the traditional
or scheduled workday has ended.
Time can be spent turning on, boot-
ing up, and opening certain computer
programs needed to perform an em-
ployee’s duties. Employees may have
to print out and read certain reports.
They may have to check in with se-
curity or go through other screening
processes just to be able to get to a
work station to perform their jobs.
Christopher A. Parlo is a partner in
Morgan Lewis’s Labor and Employ-
ment Practice. He represents and
counsels management clients in a
broad spectrum of industries and in
all aspects of labor and employment
law. Michael J. Puma is a partner in
the firm’s Employment Practice. His
practice includes the full spectrum of
labor and employment law matters.
February 2010 Employment Law Strategist ❖ www.ljnonline.com/alm?emp 5
Mississippi, held that workplace
shootings were a workers’ com-
pensation matter. See Tanks v. Lock-
heed Martin Corp., et al., 417 F.3d
456 (5th Cir. 2005). The decision
stemmed from a 2003 shooting ram-
page at a Lockheed Martin plant in
Meridian, MS, in which an employ-
ee left a mandatory diversity train-
ing class at his work site, returned
with a 12-gauge shotgun and semi-
automatic rifle, and shot 14 people
before killing himself. The Fifth Cir-
cuit’s holding meant that employees
and family members who sued the
employer for liability were limited to
awards of $150,000 each. The ruling
stated that “[t]he only viable conclu-
sion is that … [the employee’s] act of
shooting cannot be separated from
the employment status of his vic-
tims.” Critics of the decision argue
that it could lead large corporations
to believe there is no need to curtail
workplace violence because of their
potentially limited liability.
Conclusion
Litigation between state’s rights
advocates, the National Rifle Associa-
At or after the end of the scheduled
workday, an employee may need
time to log off from a computer or
may choose to check e-mails.
What Is ‘Work’?
Recognizing these realities, em-
ployees have sought clarification in
the courts as to what it means to
“work” — arguing that beyond the
things their employers had hired
them to perform from the beginning
to the end of the workday, there
were certain additional tasks they
had to complete in order to per-
form these principal activities and
that they should be paid as well for
the time spent doing them. Their ef-
forts have led to a major expansion
of the concept of “work,” to encom-
pass not only the principal activities
themselves, but also activities that
are “integral” and “indispensable” to
the principal activities.
When Does the Day Begin
And End?
To this day, however, the boundar-
ies of this additional “work” remain
murky, and efforts to define them
tion, employers, and employees will
certainly seek answers to the ques-
tions created by the courts’ decisions
and various state laws regarding
firearms in the workplace. Notwith-
standing the enactment of the state
laws, employers still must provide
a safe workplace for employees,
and intervene where appropriate. If
necessary, as a response to violent
behavior by a worker, an employer
may need to secure a court order
prohibiting the employee from car-
rying guns to work. In states with
pro-gun laws, employers may need
to re-write employee handbooks to
include firearms policies specifical-
ly created to reflect the reality that
guns could be present in the park-
ing lot. Employee training should
take place to explain exactly what
is, or is not, allowed by the employ-
er within the confines of the law. In
states that have not enacted such
laws, employers should review this
issue with employment counsel and
develop policies and procedures
with respect to firearms at work.
—❖—
in the courts have met with limited
success. The important point, how-
ever, is that if an employee can per-
suade a court to call, for example,
a particular morning task “integral”
and “indispensable,” that activity can
become the first principal activity of
the day. For compensation purposes,
the employee then is on the clock
— and is required to be paid — for
all of his or her work time from that
moment forward. The same dynamic
occurs from the end of the tradition-
al workday until the completion of
any alleged last principal activity.
Thus, a meat cutter in a slaughter-
house was originally thought to be
entitled to payment only beginning
with the time he or she reached the
butcher table, poised to begin carv-
ing the first side of beef, until courts
decided that the job could not be
done with a dull knife. In a blink,
sharpening knives became the first
principal activity of the day and the
meat cutter was entitled to be paid
not only for the time spent with
the sharpening stone, but also for
continued on page 6
Compensable Workday
continued from page 5
all of the intervening time from the
grinding room to the refrigerator to
the butcher table, including interim
walking time where the butcher was
not performing duties precisely de-
fined as “butchering,” but walking
from place to place.
Needless to say, this created a
problem for employers, but a reason-
ably containable one. Although con-
siderable uncertainty existed (and
continues to exist today) over what
activities qualify as “integral” and
“indispensable,” at least all of the ac-
tivities occurred in the workplace, so
employers could conceivably observe
and monitor what their employees
did and how long it took.
Technology Expands the
Workday
What happens, however, when the
workplace itself is no longer con-
tained within the four walls of an
office or plant? What happens to the
compensable workday in what we’ll
call the “BlackBerry Age”? For many
years now, employees have been
permitted — and in some cases re-
quired — to work without being
physically present in their places of
employment. Technology has driven
this expansion of the workplace to
include homes, cars, hotel rooms,
airplanes — virtually any place that
is cell phone– laptop– or BlackBer-
ry–accessible. This has been both a
convenience and a productivity en-
hancement for employers and em-
ployees. But these technological ad-
vances have profound implications
for what constitutes the compens-
able workday.
Take, for example, an employee
who brings his or her laptop home,
and there performs some extra work.
That employee may be entitled to be
paid not only for the few minutes
actually spent editing a document or
reading e-mails at night before he or
she sits down to dinner or goes to
bed, but also for all of the intervening
time from the minute the employee
left the office until he or she reaches
home, turns on the computer there
and finishes checking her document
or e-mails. The employee could ar-
6 Employment Law Strategist ❖ www.ljnonline.com/alm?emp February 2010
gue an entitlement for this time even
if his or her employer did not ask
that any extra outside work be done.
Remember, the compensable work-
day runs from the first principal ac-
tivity of the day to the last principal
activity. It does not start and stop to
account for intervening downtime,
such as commuting.
Take, for another example, an
employee who pulls out his or her
BlackBerry first thing in the morn-
ing to read and respond to e-mails.
At first blush, this might sound like
only a good thing for an employer,
blessed to have such a diligent and
fastidious employee. But wait! That
employee may also be found to be
performing an “integral” and “indis-
pensable” part of his or her job by
checking messages, which effectively
starts his or her day for compensa-
tion purposes, long before he or she
even reaches the office. The employer
also now has an electronic record of
all the time that is spent, beginning
with the employer’s electronic record
of the BlackBerry login. So, this dili-
gence comes at a high price.
Controlling Exposure
Because changes in technology
have made it easy for employees
to extend their workdays well be-
yond the hours indicated by the
time clock at the plant or the of-
fice — and thus more difficult for
employers to monitor and control
— employers now have to manage
the use of technology carefully to
avoid potentially crushing exposure
to overtime claims for hours worked
outside of the traditional compens-
able workday, and outside of the tra-
ditional workplace. There are steps
an employer can take to control and
limit this exposure.
First, employers should establish
a policy to limit the distribution of
technology. Remote work devices
(BlackBerrys, cell phones, laptops)
could be issued only to exempt per-
sonnel, who are not entitled to over-
time pay, and only as needed. If non-
exempt personnel need short-term
access to company technology off-
site, a company can require that they
acknowledge, preferably in writing
via an acknowledgement form, that
these tools may not be used outside
scheduled work hours (except at the
direction of a supervisor), that they
must record and report all time spent
performing off-site business activi-
ties, and that they will be required to
return their electronic devices when
the work is complete.
Second, employers should encour-
age nonexempt employees to adopt
practices that keep work at the
workplace. Encourage employees to
go home and rest, not work. Estab-
lish limits for time that can be spent
checking emails and voicemails dur-
ing non-work hours. Consider refus-
ing remote access to e-mail for non-
exempt employees altogether. The
policy’s goal is to make sure that
only those nonexempt employees
who have to work off-site are given
access to work-related technology
and that they use it no more than is
necessary.
Third, employers need to monitor
compliance with any company poli-
cies limiting the use of remote work
devices. Consider requiring nonex-
empt employees who use remote
devices to sign an annual acknowl-
edgement form signifying their un-
derstanding of the policy. Employers
can also audit or sample e-mail and
voicemail logins and other records
of employee time spent using re-
mote electronic devices and com-
pare these records to pay records to
ensure that all compensable time is
being paid. Employers should also
make sure that managers have a
firm grasp of all of the policies as
well. Require managers to confirm in
writing that they have no knowledge
of uncompensated off-site work per-
formed by nonexempt employees,
train them not to encourage and not
to ignore such work, and discipline
those managers who permit it.
Conclusion
Perhaps the most important thing
an employer can do to avoid expo-
sure to overtime claims is not to as-
sume it can accept the benefits of
work performed off-site, even if it
was done without permission and/
or in violation of company policy. If
a nonexempt employee works out
of the office, pay him or her. Then
enforce any rules against such work
with disciplinary measures.
—❖—
Brinker
continued from page 2
Guardsmark, LLC, 538 F. Supp. 2d
1209, 1217 n.3 (N.D. Cal., 2008).
Whether an employer has satisfied
each of these elements may gener-
ally be adjudicated on a classwide
basis.
Under the first element of the
defense, an employer is entitled to
offer an on-duty meal break to em-
ployees only if “the nature of the
work prevents an employee from
being relieved of all duty … .” See,
e.g., 8 CCR 11040(11)(A). “The test
of whether the nature of the work
prevents an employee from being
‘relieved of all duty’ is an objective
one” [DLSE Enforcement Manual, at
§ 45.2.3.1], and is focused on the
employer’s business “overall.” See
West v. Circle K Stores, Inc., 2006
U.S. Dist. LEXIS 42074, 14 (E.D. Cal.,
2006) (rejecting an employer’s argu-
ment that “the nature of the work
exception applies on a case-by-case,
shift-by-shift basis[,]” as “the excep-
tion was more likely provided to al-
low employers some relief when the
nature of the work in their business
overall does not permit a mid-shift
meal break.”). As the nature of the
work element is one that applies to
all employees equally, courts have
concluded that this issue is one
that may, and properly should, be
adjudicated on a class-wide basis.
See, e.g., Bufil, 162 Cal. App. 4th at
1203-1204 (concluding that the is-
sue of whether an employer’s prac-
tice of scheduling a single employee
to work alone was sufficient to satis-
fy the “nature of the work” element
was “a legal question concerning
the liability of Dollar to each puta-
tive class member.”); West v. Circle
K Stores, Inc., 2006 U.S. Dist. LEXIS
42074, at 14.
Under the second and third ele-
ments of the defense, an employer
may be held liable if it utilizes the
on-duty exemption without first se-
curing a written agreement from em-
ployees, or if the written agreement
fails to state expressly that the em-
ployee may revoke the agreement at
any time. See e.g., 8 CCR 11040(11)
February 2010 Employment Law Strategist ❖ www.ljnonline.com/alm?emp 7
(A); McFarland, 538 F. Supp. 2d at
1217, n.3. As an employer’s act of
obtaining (or failing to obtain) the
requisite written consent will gener-
ally be a standardized practice com-
mon among all employees, both of
these elements are susceptible to
class adjudication.
Importantly, while the on-duty
exemption “applies only to meal
periods, not to rest breaks” (Bu-
fil, 162 Cal. App. 4th at 1205), em-
ployers who seek to defend a meal
break action by such means may
be unwittingly setting up an argu-
ment for class adjudication of rest
period claims under barrier theory.
Indeed, an employer who advocates
that it was entitled to invoke the on-
duty meal break exemption based
on the inherent nature of its work
by necessity must make an admis-
sion that common impediments
existed that precluded free access
to all breaks — including rest pe-
riods. An employer cannot have it
both ways. An employer that utilizes
the on-duty meal break exemption
to overcome inherent impediments
will be liable if no action is taken to
provide employees some means to
access off-duty rest periods. Under
most circumstances, the employer’s
effort to avail itself of the “on-duty”
exemption all but ensures that rest
break claims will be amenable to
class adjudication as well.
Claims Based on Facially
Unlawful Break Policies
Courts have also continued to
certify classes based on meal and/
or rest period policies alleged to fa-
cially violate meal and rest period
requirements set forth in the Wage
Orders. See, e.g., Bibo v. Fed. Express,
Inc., 2009 U.S. Dist. LEXIS 37597, 30
(N.D. Cal., Apr. 21, 2009) (“Plaintiffs
have identified the relevant policies
and the law with which they argue
the policies are inconsistent, and
as such offer a common question
of law and fact that predominates
over individual inquiries.”). In Bibo,
the court certified meal period sub-
classes based on policies which vio-
lated provisions requiring that: 1) a
meal period be uninterrupted; and
2) breaks be provided after the fifth
hour of work. See Bibo, 2009 U.S.
Dist. LEXIS 37597, at 27-35.
Claims Based on Waiver
By Collective Bargaining
Agreement
In addition to the forgoing, class-
wide claims may also be predicated
upon a uniform waiver of meal and
rest periods by way of a collective
bargaining agreement. Meal and
rest periods are not exempted un-
der Labor Code § 514, and as such,
cannot be subject to waiver by a
collective bargaining agreement as
a matter of law. See Zavala v. Scott
Brothers Dairy, Inc., 143 Cal. App.
4th 585, 593 (2006); Valles v. Ivy
Hill Corp., 410 F.3d 1071, 1081-82
(9th Cir., 2005) (holding that “any
provision of the collective bargain-
ing agreement purporting to waive
the right to meal periods would be
of no force or effect: The right in
question is plainly nonnegotiable.”);
Tormey v. Vons Cos., Inc., 2007 U.S.
Dist. LEXIS 66010 (S.D. Cal. Sept. 5,
2007). Based on such authority, an
employer’s effort to secure a univer-
sal waiver by such means presents
a common issue ideal for class ad-
judication.
Claims Based on
Misclassification of
Exempt Status
Finally, classwide claims may also
be predicated upon a challenge of
an employer’s policy of improperly
classifying employees as exempt.
As a general rule, meal and rest pe-
riod requirements do not apply to
exempt employees under the Wage
Orders. See, e.g., 8 CCR 11040(1)(A)
(“Provisions of sections 3 through
12 shall not apply to persons em-
ployed in administrative, executive,
or professional capacities.”); Wiegele
v. FedEx Ground Package Sys., 2008
U.S. Dist. LEXIS 10246, 6 (S.D. Cal.
Feb. 12, 2008) ( holding that “[a]n
employee classified as ‘exempt’ … is
not covered by California's overtime
and meal and rest period laws” and
“[i]f a classification is challenged, the
employer must demonstrate that its
‘exempt’ classification is proper.”).
Thus, where an employer maintains
continued on page 8

M o v e r s &  S h a k e r s
Weil, Gotshal & Manges an-
nounced that Allan Dinkoff, former-
ly a Managing Director and Head of
the Employment Law Group at Mer-
rill Lynch & Co., Inc., has joined the
firm’s Employment Litigation Prac-
tice as counsel in the New York of-
fice. Mr. Dinkoff has nearly 30 years
of experience handling employment
matters and complex commercial liti-
gation.
Ronald Stadler has joined Smith-
Amundsen LLC in the firm’s Mil-
waukee, WI, office as a partner in
the Labor & Employment practice
group. Mr. Stadler has over 20 years
of experience as a trial attorney and
adviser to his clients in the areas of
labor and employment law, school
law, commercial litigation, and mu-
nicipal law. He regularly advises pri-
vate and public sector employers on
labor and employment matters.
VER D I C TS
Claim of Breach of Fiduciary
Duty under ERISA Fails
In Ladouceur v. Credit Lyonnais,
07-4040-cv, U.S. Court Of Appeals,
Second Circuit, Sept. 30, 2009, plain-
tiffs were employed by a Credit Lyon-
nais subsidiary absorbed by its cor-
porate parent in 2001. They alleged
that Credit Lyonnais and its human
resources director orally misrepre-
sented the merger’s effect on plain-
tiffs’ pension benefits plan, which
Brinker
continued from page 7
that it was not required to provide
breaks based on a policy of categori-
cally classifying certain groups of em-
ployees as exempt, that policy may,
in some cases, be adjudicated on a
class-wide basis. See, e.g., Wiegele,
2008 U.S. Dist. LEXIS 10246 (grant-
To order this newsletter, call:
1-877-256-2472
8 Employment Law Strategist ❖ www.ljnonline.com/alm?emp February 2010
Potter Anderson & Corroon LLP
announced that 14 of its attorneys
were named 2009 Delaware Super
Lawyers. The Delaware Super Law-
yers listing reflects the top 5% of the
attorneys statewide based on nomi-
nations by peers and independent
research by the publishers of Law &
Politics magazine. Kathleen Furey
McDonough was listed in the area
of Employment & Labor.
William K. Kennedy II has been
made a partner in Ballard Spahr’s
Philadelphia office. He is a member
of the Litigation Department and the
Labor, Employment & Immigration
Group. He represents management and
government entities in employment-
related litigation, labor arbitrations,
collective bargaining negotiations, and
unfair labor practice disputes.
Stoel Rives LLP, a business law
firm, announced that Jeffry A.
was governed by ERISA. The district
court summarily dismissed their al-
legations of promissory estoppel and
breach of fiduciary duty based on
the oral misrepresentations. On ap-
peal, plaintiffs argued that an oral
representation was enough to show a
breach of fiduciary duty claim based
on a purported alteration of a benefits
plan governed by ERISA. The panel
affirmed judgment rejecting plaintiffs’
assertion that the district court erred
ing certification of manager class
alleging, among other things, the
failure to provide meal and rest pe-
riods based on employer’s improper
exempt classification).
Conclusion
In sum, the Brinker line of cases
falls far short of a fait accompli in
terms of a categorical bar to class
adjudication of meal and rest peri-
Hodges has joined its Seattle office.
Hodges is an associate in the Em-
ployee Benefits group and practices
in the area of executive compensa-
tion and employee benefits. He has
broad experience with tax qualifica-
tion, reporting, disclosure, fiduciary
and compliance issues for all types
of employee benefit plans.
Hinshaw & Culbertson LLP an-
nounced that the Governors of the
College of Labor and Employment
Lawyers have elected Capital Partner
Thomas Mandler as a new Fellow
of the College. Fellows are named
for their sustained outstanding per-
formance in the profession, exem-
plifying integrity, dedication and ex-
cellence, according to the College.
They are dedicated to the study and
enhancement of professional ethics
in the practice of labor and employ-
ment law and to the improvement
of the delivery and quality of labor
and employment legal services.
—❖—
in dismissing “for lack of any writing”
their claim for breach of fiduciary
duty under ERISA. The panel con-
cluded that because a statement can-
not effect a change in an ERISA plan,
that statement cannot be given effect
by re-characterizing it as a breach of
fiduciary duty. It observed that to give
such effect to an oral statement would
undermine ERISA’s framework ensur-
ing that ERISA plans be governed
by written documents and dilute the
protection conferred by the writing
requirement.
—❖—
od claims. In a post-Brinker world,
just as before, standardized poli-
cies and practices that categorical-
ly impede employee access to meal
and rest periods continue to pres-
ent the paradigm theory for class
adjudication of a meal and/or rest
period claim.
—❖—
On the Web at:
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