DLSE Withdraws July 2008 "Brinker Memo"

The DLSE memo issued July 22, 2008 July 25, 2008, by Angela Bradstreet, Denise Padres, and Robert Roginson has been withdrawn. A new memo, dated October 23, 2008, provides: "Effective immediately, neither the [Brinker] Court of Appeal decision nor the memo may be relied upon by any DLSE staff in deciding pending or future matters." However, in the same document, Labor Commissioner Angela Bradstreet essentially tells the staff to keep following the reasoning in Brinker, even though the Supreme Court’s grant of review supersedes the Court of Appeal’s decision, and the Court of Appeal decision may not be cited or relied on by a court or a party in any other action. (California Rules of Court 8.1105(e) and 8.1115(a)).

"Until such time that the Supreme Court provides guidance on this fundamental question, the Division will rely upon the language of the statute and wage order as well as existing California Supreme Court and Court of Appeal decisions and other recent, persuasive federal court decisions in interpreting Labor Code section 512 and the meal period provisions set forth in the applicable wage orders. Taken together, the language of the statute and the regulation, and the cases interpreting them demonstrates compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken."

The memo instructs employees to follow Brown v. Federal Express Corporation(C.D.Cal. 2008) 249 F.R.D. 580, 585, and to disregard the only binding precedent in California, Cicairos v Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962, because its "interpretation of California’s meal period requirements is not compelling."

On the issue of meal period timing, the memo observes that the DLSE "has varied in its interpretation of this so-called 'rolling five' hour rule in the past, [and] there is no controlling legal authority interpreting California’s meal period regulations to require employers to provide meal periods every five hours." Consequently, until a binding appellate opinion interprets the wage orders and Labor Code § 512 to require employers to provide meal periods every five hours, the DLSE "will not interpret California’s meal period provisions in that fashion." Instead, the DLSE position will be that:

• The first meal period provided by an employer must commence prior to the end of the fifth hour of work, unless otherwise expressly permitted by the applicable wage order; and

• Except as required in Labor Code § 512(a) and Section 11(B) of those wage orders requiring a second meal period, there is no obligation for employers to provide additional meal periods during the course of the workday, including instances in which employees work for a period of more than five hours of work between meal periods.

The memo concludes with the instruction that "any wage claim filed with DLSE that has a meal period issue is reviewed by your Senior Deputy prior to making any final determination on its merits." To us, this sounds a lot like an underground regulation adopted without complying with APA requirements. More importantly, many low-income workers who rely upon DLSE enforcement of their complaint will suffer in the next 18-24 months as we wait for the Supreme Court to decide Brinker.

Comments

[Jon Storm]

This is absurd. I know we are living in an era of increasing lawlessness—I get that. But who does this help? The employee who is wink-wink'd out of his lunches, or the employer who thinks, under current law, he doesn't have a responsibility to do so, only to find out that's not the law and he had be hit with a huge lawsuit?

Gevalt.

You don't need a Harvard law degree to figure this out:

LC 512 requires that employers provide employees with a 30-minute meal break when they work more than 5 hours a day.

LC 512 also gives employees the right to waive their meal break if they work no more than 6 hours a day - and the employer agrees.

If it was the intent of the legislature to allow employees to waive meal breaks when they work 6.5 hours, 7.0 hours, 8.0 hours or ALWAYS, that would have been written into the law.

LC 512 as a health & safety, protection statute for employees. I openly recognize some employees would like to work 8, 9, or 10 hours straight without taking a meal break - thus allowing them to finish their job quicker and go home earlier. However, LC 512 protects employees from their own stupidity. It is akin to the construction worker who finds wearing a safety belt cumbersome and constricting. The law gives the employee the right not to wear a safety harness when working below some specified height, but the refusal to wear safety equipment is not absolute. It is the employers repsonsibility to FORCE the employee to wear the safety harness when working over XX feet - otherwise the employer is subject to stiff fines and penalties. LC 512 operates the same way.

Did I miss something, or did Angela Bradstreet backdate her July memo to the 22nd?