Off the Clock: The Newsletter of the Labor and Employment Section of the Alameda County Bar Association. Have your Say!

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1 In this Issue: ACBA Welcome Brinker v. S.C. Oral Arguments Wardrobe For Opportunity Second Annual Labor and Employment Symposium Capturing Wages for Off-The-Clock Work in California Retail Stores Off the Clock: The Newsletter of the Labor and Employment Section of the Alameda County Bar Association The Labor and Employment newsletter is back! the Autumn 2011 newsletter is here to provide California Labor and Employment news you can use, proemployer and pro-employee articles from your fellow section members (both sides of the same issue, when possible), and updates on Labor & Employment Section events that you won t want to miss. Have your Say! We welcome comments, tips or interesting stories from your practice to include in future newsletters. We are looking for short articles, from three to twelve sentences in length, and for articles no longer than 500 words. We will credit the author by name and identify his or her firm or company. Please send any write-ups to Michael Hernandez at Michael@acbanet.org. We Need Your Input 2011 Labor and Employment Section Executive Committee Brinker Restaurant v. Superior Court of San Diego (Hohnbaum) Scheduled Oral Arguments for November 8 The Supreme Court of California will soon issue its opinion in the widely talked about and anticipated Brinker meal and rest periods case. Oral argument before the California Supreme Court is set for Tuesday, November 8, 2011 at 9:00 am in San Francisco, and a final decision is expected within 90 days of that date. Brinker International, Inc. owns casual dining restaurants around the world, including Chili s and Maggiano s restaurants in California. In question are the meaning and requirements of California s policy on meal and rest breaks. The court s written opinion will decide whether employers must ensure employees take their meal and rest periods or simply make the breaks available. The decision is certain to impact many of our clients soon after it is rendered. The California Channel will be broadcast the oral arguments beginning at 9:00 am on Tuesday, November 8, You can view the California Channel s live webcast at:

2 Lawyers Bring Suits: Professional Clothing Needed for Clothing Drive The season for giving is upon us and we encourage you to donate your gently worn professional clothing during the Labor & Employment Section s upcoming clothing drive to benefit Wardrobe for Opportunity (WFO). Please keep the following in mind when organizing your clothing to donate: Does your item help to set someone up for success on the interview or for a job? Can this item be worn by another person right away? Will someone feel more confident when wearing this? Date and Time Monday, November 14, 2011 through Friday, November 18, :00 A.M. - 5:00 P.M. Location Scott Cole & Associates, APC 1970 Broadway, Ninth Floor Oakland, CA Wardrobe for Opportunity ( is a non-profit organization that works in partnership with the Bay Area community to assist low-income individuals to Find a Job, Keep a Job, and Build a Career. Since 1995, WFO has helped over 17,500 low-income members of our community from their two locations in downtown Oakland and Concord. Your clothing donations will ensure that Wardrobe for Opportunity has the inventory to appropriately dress their clients for work. What Can I Donate? Please donate only items that are undamaged, clean, dry-cleaned, or ironed and on hangers (if clothing item). This ensures that it will arrive at Wardrobe for Opportunity in premium condition with minimum wrinkles. If your donations have tears in the lining, broken zippers, and/or missing buttons please have them fixed prior to donating or clearly indicate the spot where repairs need to be made. Wardrobe for Opportunity accepts the following new or gently used items for men and women: belts, blazers, blouses, briefcases, coats, cuff links, dress shirts, dresses, earrings, handbags, jackets, khakis pants or skirts, knit or jersey tops, necklaces, pins, polo shirts, portfolio pads, scarves, shoes, skirts, slacks, sport coats, suits, tie clips, ties, umbrellas, watches, and work boots. Wardrobe for Opportunity also accepts the following items that are new or unused still in its original package or tagged: bras, make-up, socks, stockings (hosiery, knee-hi s), toiletries items, and undergarments (men & women). The following items are not a part of the programs and are not accepted: children s apparel, evening wear, graphic t-shirts, hangers (w/out donations), jeans, lingerie, flipflops, perfume, and used make-up or undergarments. Please visit Wardrobe for Opportunity for more information on their services and programs or contact Michael Hernandez at ACBA (Michael@acbanet.org ) for additional details about the clothing drive.

3 L&E Section Holds Second Annual Labor and Employment Symposium The Labor and Employment Section held its Second Annual Employment Law Symposium on September 30, 2011 at the Lake Chalet Seafood Bar & Grillon Lake Merritt and featured four panels and an evening reception. Thank you to everyone who attended and provided feedback for us to use in preparing next year s symposium. We also wishto thank everyone who helped put together this symposium, with special thanks to Hunter Pyle, who spearheaded the planning of this event with unflagging enthusiasm. The Lake Chalet Seafood Bar & Grill offered a comfortably elegant setting for the Symposium. Matthew Bainer (moderator), James Diamond, Jeff Ross, and Scott Cole (panelists) lead a discussion on mediation of employment cases.

4 Capturing Wages for Off-The-Clock Work in California Retail Stores Labor and Employment Committee Member Patrick R. Kitchin of Kitchin Legal submitted the following article about an unsettled area of law in wage and hour claims. During the past several years, we have represented employees of several clothing retailers, such as retailers Polo Ralph Lauren Gap and Banana Republic and Chico s in California-wide class action cases. All of these cases were prosecuted under California labor law. Our most recent employment class action against Polo Ralph Lauren challenged its failure to pay employees for the time they spent waiting for and undergoing bag checks or internal theft prevention inspections at the end of their shifts. Our clients alleged they sometimes had to wait for up to a half an hour for managers to perform bag checks and let them leave the stores. They alleged that under California law this off-the-clock time was work and that they were entitled to wages for the time they spent in their stores between clock out and walk out. Bag Checks Are Common In the Retail Setting In the retail store environment, many companies require employees to undergo bag check inspections before they can leave their stores for breaks or at the end of their shifts. According to industry experts, bag checks are a loss prevention tool used by retailers to discourage internal theft. These bag checks are permitted under California law and are generally a mandatory condition of employment for certain types of retail workers. The problem arises when employees are required to wait for their managers or other authorized personnel to perform bag checks on them after they have clocked out and are no longer being paid for their time. Is this waiting time compensable under California law? Under California Law, an Employer s Control Over the Worker Is Key With certain limited exceptions, hourly employees in California are entitled to be paid for all the time they are subject to the control of an employer. Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal. App. 4th This includes all the time the employee is suffered or permitted to work, whether or not required to do so Industrial Welfare Commission Order In the Polo case, our clients alleged they had been locked inside their stores after they had clocked out at the end of their shifts. From our clients perspective, physical confinement plainly satisfied the control requirement under California law. The Federal De Minimis Defense Polo defended the claims by relying on a federal legal doctrine called the de minimis defense. The de minimis defense arose out of the Portal-to-Portal Act (a 1947 amendment to the federal Fair Labor Standards Act). 29 U.S.C. 254(a) 2, a provision of the Fair Labor Standards Act, provides that certain activities performed before (preliminary) or after (postliminary) the worker s principal activities are not compensable. Under the Fair Labor Standards Act, principle activities include any work of consequence performed

5 for an employer, no matter when the work is performed. If the activity is necessary to the business and is performed by the employees for the primary benefit of the employer, it is generally compensable time, unless it is deemed to be de minimis. It is de minimis when the unpaid time is short, occurs infrequently and is difficult for the employer to track, Lindow v. United States, 738 F. 2d 1057 (9th Cir. 1984) 3 As the United States Supreme Court explained more than 60 years ago in TEST Anderson v. Mt. Clemens Pottery Co., 4 When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. 328 U.S. 680, 692, 66 S.Ct. 1187, 1195, 90 L.Ed (1946). Federal Courts, including the Ninth Circuit, have developed a three-part test to evaluate when unpaid work time can be described as de minimis. In Lindow v. United States, (9th Cir. 1984) 5, the Ninth Circuit Court of Appeals explained that to excuse an employer from its wage obligations under the de minimis defense, the courts must evaluate: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work. Thus, if the work time is short, occurs only on rare occasion and is very hard to track, under federal law the employer can essentially ignore it. Does the De Minimis Defense Apply Under California Law? One of the central legal issues in the Polo case was whether the federal de minimis exception applied to wage and hour claims under California law. We argued that applying the de minimis defense to our clients off-the-clock claims would undermine California s subject to the control test. In other words, if employees under California law are entitled to be paid for all time they are under the employer s control, it does not matter whether the time is preliminary, postliminary or de minimis. The only thing that matters is whether the worker is under the employer s control. If control is present, then the worker is entitled to be paid for the time they are under that control. While the de minimis defense has not been tested by any California appellate court, one thing is clear: The federal authorities are of little if any assistance in construing state regulations which provide greater protection to workers. Bono Enterprises, Inc. v. Bradshaw, 32 Cal. App. 4th 968 (1995) 6. This distinction is of great benefit to California workers and is one reason most wage and hour cases in California are prosecuted under California, and not federal, law. So, does the de minimis defense apply to wage and hour claims under more employee-friendly California law? We still do not know. Just days before the trial court in the Polo class action was scheduled to decide whether to apply the federal de minimis defense to our clients claims, the case settled for $4 million. 7 Eventually, of course, a California appellate court will be asked to decide whether the de minimis defense applies to California off-the-clock claims. For now, California law remains unclear. What if the de minimis defense is deemed to apply to California claims? If workers can establish that the off-theclock work occurred regularly, amounted to substantial time during the course of employment and that it would have been feasible for the employer to track the time, the de minimis defense should not have a substantial impact on their right to be paid wages for all the time they are subject to their employer s control.

6 We need your input! As 2011 draws to a close, we are looking ahead to identify seminar topics and presenters for next year. Let us know if you or one of your colleagues would like to present a labor or employment topic. Just send an to David Tubman (dtubman@tubmanlawgroup.com) or Michael Hernandez (michael@ acbanet.org) Labor and Employment Section Executive Committee David Tubman, Chair Michael Broad, Vice-Chair Emily Nugent, Secretary Matthew Bainer Sandy Van Broek Jocelyn Burton Delia Isvoranu Patrick Kitchin Hunter Pyle Emily Nugent, David Tubman, and Robert Nuddleman enjoy wine and conversation during the September 15th Labor and Employment Law Social. Cerruti Cellars graciously provided its venue for the Labor and Employment Law Social