Flight Attendants File California Meal Break Lawsuit

In recent news, flight attendants for Skywest Airlines file a California meal break lawsuit.

The Case: Bernstein v. Virgin America Inc

The Court: United States District Court, N.D. California

The Case No.: 15-v-02277-JST

The Plaintiff: Bernstein v. Virgin America Inc

The plaintiffs in the proposed class action are two former flight attendants of Defendant Virgin America, Inc. and Defendant Alaska Airlines, Inc. ("Virgin") in California. The plaintiffs allege that Virgin did not pay them for hours they worked before, after, and between scheduled flights, time they spent completing incident reports, time spent in required training, and time spent completing mandatory drug testing. The plaintiffs also allege that the airline did not allow them to take meal periods earlier than one hour before landing, did not allow rest breaks, did not pay overtime and minimum wages, and did not provide accurate wage statements as required by law. The plaintiffs filed for summary judgment.

The Defendant: Bernstein v. Virgin America Inc

The defendant in the case, Virgin American Inc. is headquartered in Burlingame, California. According to company policy:

• Crew leaders provide rest and meal periods for flight attendants.

• Flight attendants have the opportunity to take breaks, they are still on duty throughout the entirety of a flight.

• However, many flight attendants claim they are not able to take breaks on their flights, and approximately one-third of Virgin America’s daily flights since 2011 were more than five hours long.

The Case: Bernstein v. Virgin America Inc

Virgin America argued that federal regulations governing the airline (Airline Deregulation Act, federal aviation safety regulations, and the dormant commerce clause) preempt the plaintiffs’ claims based on wage and hour law, but the California judge hearing the case, U.S. District Judge Vince Chhabria, rejected the argument citing Bernstein v. Virgin America Inc., ruling that flight crews could be subject to California meal period and rest break laws. The judge cited California law stating an employer's ability to seek an exemption from rest breaks when compliance would materially affect the welfare or comfort of the employees and create an undue hardship for the employer. The judge even noted that flight attendants seemed to be a prime example of a qualifying situation for this exemption. The judge further noted that California law allows on duty meal breaks when "the nature of the work prevents an employee from being relieved of all duty" as long as the parties involved agree to an on-duty meal break. (The agreement to an on duty meal break must be written). By noting these exceptions to California law, the judge offered the airline a significant amount of wiggle room.

However, the airline argued that neither of the specified provisions actually helps reduce the burden compliance with California state law would impose. The airline does not argue that they complied with California meal and rest break law. Plaintiffs submitted evidence that they were not provided required breaks and were not compensated with extra pay. In response, the judge granted the plaintiffs’ partial motion for summary judgment regarding the airline’s liability on meal and rest break claims.

If you need to discuss California state law or if you need to file a class action lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Do Overtime Rules Apply to Missed Meal Breaks in California?

An opinion issued on July 15, 2021 by the California Supreme Court in regard to meal period premiums impacts employers providing non discretionary payments for work performed by California employees.

The Case: Ferra v. Loews Hollywood Hotel, LLC

The Court: California Supreme Court

The Case No.: S259172

The Issue: Ferra v. Loews Hollywood Hotel, LLC

​​Generally speaking, non-exempt California workers may not work more than five hours without an uninterrupted meal period of at least 30 minutes being offered by their employer. If a California worker completes a shift longer than 10 hours, a second unpaid period of at least 30 minutes is required. An employee may waive their first meal period if six hours completes their day at work. The second meal period may be waived by the employee if the first meal period wasn’t waived and if the California employee’s shift is no longer than 12 hours. Additionally, California employers must provide rest breaks (for a minimum of 10 minutes) to their employees for every three and half hours they work. Employees cannot waive their mandatory rest breaks. When employees are not able to take their mandated meal breaks or rest breaks, employers must pay the employee a premium (Labor Code Section 226.7(c)).

The Question: Ferra v. Loews Hollywood Hotel, LLC

California law requires employers to provide one hour of pay for each workday in which they miss their mandatory meal breaks or rest periods. Prior to Ferra v. Loews Hollywood Hotel, LLC, employers and the lower courts seemed to agree that the premium for a missed meal or rest period was one hour of pay at the employee’s regular rate or pay. The case at hand brought up the question of whether or not Labor Code Section 226.7(c) ‘s reference to an employee’s “regular rate of pay” should take into account non discretionary forms of payment earned by employees in addition to their hourly wage. The reasoning presented in the case compared the calculation of compensation for missed meal and rest periods to the calculations used for overtime pay rates.

The Ruling: California Justices Say Overtime Rules Do Apply To Missed Meal Breaks

The California Supreme Court held that meal period premiums must consider non discretionary payments when designating the employee’s regular rate of compensation. Non Discretionary payments can refer to a variety of pay methods, but a common form of non discretionary pay is a bonus. In addition, the Court held that the decision would apply retroactively. The statute of limitations for underpaid or unpaid meal and rest break premiums is three years (or four years if the plaintiff also alleges a violation of California’s Unfair Competition Law). Claims under Private Attorneys General Act have a statute of limitation period of one year.

If you have questions about payment for missed meal breaks or rest periods or if you’ve experienced other labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Can Geico Employees Keep their Wage Suit Alive?

In recent news, Geico attempted to have an overtime pay lawsuit tossed, but in this instance, auto claim adjusters alleging the company forced workers to work off the clock, and failed to provide meal breaks and rest periods as required by law.

Details of the Case: Saul Gonzalez et al. v. Government Employees Insurance Company Inc.

Court: U.S. District Court for the Central District of California

Case No.: 2:20-cv-11722

Workers Filed a Collective and Class Action:

In December 2020, workers filed a collective and class action alleging Geico employees were required to work off the clock, and work through breaks without appropriate compensation. The push to work through breaks and off the clock was allegedly a company effort to meet inspection quotas and employees claim they feared refusing could result in poor performance evaluations. Plaintiffs Alexander Rieske and Saul Gonzalez filed the suit alleging violations of California and New York state laws, and violations of the Fair Labor Standards Act. According to the motion, thirteen other adjusters have already joined the plaintiffs.

Defendant Files a Motion to Dismiss Claiming Lack of Jurisdiction:

In March 2021, Geico filed a motion to dismiss the suit claiming that there was no practical reason to litigate out-of-state claims in California and indicating the court lacked jurisdiction to decide the claims in the case. In their opposition filing, plaintiffs asserted that the U.S. Supreme Court decision the insurer relied on to push for dismissal of the nationwide collective action (and the New York state class action) doesn’t apply because unlike the Supreme Court case, Saul Gonzalez et al. v. Government Employees Insurance Company Inc. involves federal claims brought in federal court.

Does the 2017 Bristol-Myers Squibb v. Superior Court Decision Apply?

When filing for dismissal, Geico cited the Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court. However, plaintiffs in the suit claim this decision does not apply to the current case since Bristol-Myers Squibb v. Superior Court pertained to state jurisdiction finding that California state courts could not adjudicate mass tort claims when plaintiffs were not from California. The Saul Gonzalez et al. v. Government Employees Insurance Company Inc. action is different because it concerns federal claims in federal court. Plaintiffs further argued that if the court accepted the position presented by Geico that federal courts cannot hear out-of-state claims brought under FLSA, it would effectively eliminate the collective nature of the FLSA.

California Federal Court Finds Bristol-Myers Decision Does Not Apply:

In October 2020, the California federal court’s decision stated that the Bristol-Meyers decision does not apply to FLSA claims brought in federal court (including the current action).

If you need to discuss California state labor laws or if you need to file FLSA claims, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Ferra v. Loews Hollywood: Another Key 2021 California Employment Law Case

Most would agree that the California courts were pretty quiet throughout 2020, but that appears to be changing in 2021. As of now, the California Supreme Court is scheduled to see several significant employment law cases that could affect how employment law affects employers and employees throughout California. 

Ferra v. Loews Hollywood: Scheduled to Appear before California Supreme Court in 2021

Case Info: Ferra v. Loews Hollywood, Nos. B283218, Los Angeles CountySuper. Ct. No. BC586176

In 2021, Ferra v. Loews Hollywood is scheduled to appear before the California Supreme Court. The Plaintiff in the case appealed to the Supreme Court of California asking for clarification of Labor Code 226.7’s phrasing “regular rate of compensation” and what it means in a context where the employee in question receives numerous forms of wages for work performed on the job. 

The Plaintiff, Ferra, Claims Loews Hollywood Hotel Violated California Labor Law: 

Plaintiff, on behalf of herself and three alleged classes of hourly employees working at Loews Hollywood Hotels, filed a class action. The Plaintiff alleges that the employer’s calculation of the premium payment was inaccurate because the company did not provide mandatory meal breaks and rest periods as required by California labor law (Labor Code section 226.7). Based on the alleged miscalculations, the Plaintiff also alleges that Loews did not provide full payment for all hours worked due to shaving and rounding time from employee hours. The Court of Appeal found in favor of  Loew’s holding that the statute’s plain language, federal case precedent, and the statutory history all indicate a difference between the “regular rate of compensation” and the “regular rate of pay.” The court held that Loew’s “rounding policy” did not result in systematic undercompensation of Loew’s employees over time. 

What Question Does the California Supreme Court Need to Decide? 

Discussion of the case has concerned parties pointing out (and urging the California Supreme Court to hold) that “regular rate of compensation” as pertaining to meal and rest breaks is in reference to the employee’s base hourly wage. This definition provides distinction between the two oft-confused phrases, since the term “regular rate of pay” generally includes non hourly compensation. 

The California Supreme Court’s Decision on Ferra v. Loews Hollywood:

California employers and employees should watch the Ferra v. Loews Hollywood case since the California Supreme Court’s decision could affect how wages earned based on meal period penalties are calculated. The regular rate used to calculate overtime seems cumbersome for meal period penalty calculations since the regular rate of pay could include annual or quarterly bonuses (some of which could occur after the missed meal period for which the penalty is being calculated). However, “regular rate of compensation” does sound very similar to “regular rate of pay” and federal district courts have ruled both ways on the issue, so many are interested to see which way the California Supreme Court will lean on this issue.

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Siemens Mobility Sued Over Alleged Missed Breaks and Wage Issues

Siemens Mobility is currently facing a potential class-action lawsuit after one of their material handlers, Dewitt Nunery, sued to allege wage issues, skipped lunch and rest periods, and inaccurate wage statements.

Plaintiff Claims He Was Required to Work Through Breaks:

The plaintiff in the case is a Siemens Mobility warehouse worker and material handler with an hourly pay rate of $16.37. Nunery claims Siemens required him to work through breaks at the Sacramento County train factory. Nunery claims that in addition to not getting a chance to take his breaks, he was not offered accurate overtime payment for missed break time.

Skipping “Paid” Breaks Should Add Time to the End of the Shift

Since rest breaks are "paid time," skipping rest breaks during a work shift should add that time to the end of the shift, but Nunery claims it wasn't. Still working at the train factory, Nunery alleges the company pressured him to work over seven days consecutively without overtime pay. Siemens train factory has been growing significantly throughout the last several years, with numerous large orders coming in from throughout the United States and Canada. The factory fulfills orders for trains, train sets, and light rail vehicles.

Seeking Legal Help to Resolve an Employment Law Violation:

Originally, Acara Solutions Inc., a staffing agency based out of New York, placed Nunery at the Siemens train factory. Later he worked for Siemens directly. Nunery claims he experienced the same payment issues and employment law violations under both Acara Solutions Inc. and Siemens. Nunery seeks penalties under the Private Attorneys General Act and seeks class-action for others in similar situations at the company. Nunery's attorney filed a notice of violations of the California Labor Code in October. In December, they filed a civil suit in Sacramento County Superior Court. Effective February 10, 2020, the case was moved from Sacramento County court to the U.S. District Court for the Eastern District of California.

The Suit Alleges Numerous Employment Law Violations:

Nunery's suit alleges meal break violations, rest break violations, minimum wage violations, and overtime pay violations. Nunery also claims that the company failed to provide accurate and itemized wage statements and failed to provide Nunery with a day off for seven consecutive days on the job.

The Siemens factory, located just south of Sacramento, is the third largest manufacturer in the region employing 1,500 workers.

If you need to talk to someone about violations in the workplace or if you need to file an overtime pay lawsuit, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Supreme Court of California Agrees to Review Appellate Decision on Meal and Rest Period Case

The Supreme Court of California will review the California Court of Appeal's decision in the meal and rest period premium calculation case, Ferra v. Loews Hollywood Hotel, LLC. The Supreme Court will consider the term "regular rate of compensation" in Labor Code section 226.7.

In Labor Code 226.7, the term "regular rate of compensation" is used when requiring employers to provide employees with payment when required meal periods and rest breaks are not provided. The Supreme Court of California will consider the question of whether or not the "regular rate of compensation" in Labor Code 226.7 should be interpreted the same and require the same calculations as the phrase "regular rate of pay" in Labor Code Section 510(a), which references overtime calculation requirements.

What is California Labor Code 226.7?

In California Labor Code Section 226.7 employers that fail to comply with employment law by providing employees with required meal, and rest periods are required to pay the employee an additional hour of payment. According to the section referenced, the payment must be "at the employee's regular rate of compensation for each workday" that the employer does not provide a meal or rest or recovery period.

What is California Labor Code 510?

In California, Labor Code Section 510, employers are required to pay employees overtime at either one and one-half or twice the employee's "regular rate of pay" if the employee works more than full-time hours (as determined by law).

Defining Section 510's "Regular Rate of Pay:"

Previously, Section 510's "regular rate of pay" was clarified by the Supreme Court of California, determining that calculations should include additional compensation outside of the employee's straight hourly rate. Additional compensation could consist of anything from commissions to split-shift differentials to nondiscretionary bonuses, etc. There is no similar California case law that provides clarification for calculating Section 226.7's "regular rate of compensation." The question forms the basis of deliberations for the court considering Ferra.

The plaintiff in the case is an hourly employee of Loews Hollywood Hotel, LLC, that brought a putative class action against the hotel giant, alleging that the company inaccurately calculated meal and rest period premiums in violation of Labor Code Section 226.7. The plaintiff argued that Loews should have calculated the regular rate of compensation for payment due to missed meal and rest periods in the same manner used to calculate the regular rate of pay used to determine payment for overtime hours. The Court of Appeal came back with an employer-friendly ruling, disagreeing with the argument presented by the plaintiff in the case.

The plaintiff appealed to the Supreme Court of California, asking that Labor Code Section 226.7's terminology receive clarification.

If you have questions about California labor law violations or how California responds to employment law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Discouraging Workers from Taking Meal Breaks Cost Walmart over $6M

Two Walmart workers filed a California class-action lawsuit alleging lost meal breaks due to mandatory security checks. The plaintiffs, Chelsea Hamilton and Alyssa Hernandez, contended that the required security search took a lot of time,  was intrusive and embarrassing.  Plaintiffs did not claim that Walmart prohibited them from taking their break, but they did insist they were discouraged. Discouraging employees from taking their legally protected meal break cost Walmart $6.1 million when the jury awarded Walmart workers in April.

Throughout the years, lawsuits filed by employees have resulted in rulings on what employers can do, what employers cannot do, and what employers are required to do in different legal areas. One of the most common disputed areas is rest and meal breaks. This case makes it clear that employers may not make it too hard or too much of a hassle for their employees to take their legally protected meal breaks. Some say that “meal break discouragement” theory could be an important new element of California labor law.

According to the California Labor Code, non-exempt workers are entitled to receive a 30-minute meal break if they work over 5 hours in one day. Employers are not required to pay employees for the meal break. Employees who work more than 10 hours in one day are entitled to additional meal breaks. Employers are also required to provide employees with 10-minute breaks every 4 hours on the job. Unlike meal breaks, employers are required by law to pay employees during their mandatory 10-minute breaks.

Employers who do not comply with meal and rest break law are required to provide employees who missed mandatory breaks with one additional hour of regular pay for each day during which a meal break violation occurred. Another extra hour of payment is required for each day during which a rest break violation occurred during their work shift.

Past lawsuits and findings of the court have made it clear that both rest and meal breaks must be free of job duties and uninterrupted (this includes running errands for the company/employer or being on call).  

If you are experiencing meal and rest break violations in the workplace or if your employer does not offer meal or rest breaks to employees, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Find the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.