It was not a bill I was tracking, but others have skillfully covered the passing of SB 940, which changes the rules for “end of assignment” payments for temp agencies.  (See Brent Giddens and Shaw Valenza.)

According to WageLaw and this memo posted by Shaw & Valenza, the DLSE has changed their Field Manual to order enforcement along the lines of the recent Brinker case.  As far as I know, the case hasn’t been dismissed (the docket seems clear), so it’s jumping the gun a little bit, don’t you think?

Of course, the DLSE wanted the first Brinker opinion published, even though it disagreed with existing DLSE policy.  The DIR did not reply to questions at the time.

So my question to the group here is this: the DLSE (at least at the top) is working hard to promulgate pro-employer policies.  But many employers seem to want (correctly, I think) clarity as much as leniency.  This seems to just be reducing clarity less than creating leniency.

Take the Kenneth Cole case as a model.  Long before the Supreme Court held that money awarded for missed meal periods and rest breaks were “wages” and not “penalties” the DLSE issued a “precedent decision” holding that they were penalties.  After an abortive attempt in Southern California, the appelate courts started weighing in.  The vast majority agreed with the DLSE.

But then the Supreme Court unanimously went against all of them. So, tell me—isn’t the DLSE, in its attempt to help employers, just sticking them in a giant spring-loaded trap?

The UCL Practitioner: Discussing an article in this morning’s Recorder, Kimberly believes this creates a split of authority with Cicairos.

Wage Law keeps its analysis short due to a new arrival in the family. Mazel tov.  Their quick take: “if this had been the first appellate decision in California concerning wage and hour class actions, there might never have been a second wage and hour class action”

Robert Nuddleman: “There are still plenty of ways an employee could claim s/he was dissuaded from taking a required break.”

Shaw Valenza: “a major decision that could bring meal and break period class actions to a screeching halt”

Kent Sprinkle: Notes the Brinker court’s reliance on federal district court opinions.

It’s worth pointing out that the Employment Law Information Network noted recently that wage and hour lawsuits have increased again this year.  The judges don’t live in a bubble aren’t aren’t immune to considerations beyond the trial transcript.

All in all, I think there’s a bit of irrational exuberance in the reaction to this case.  First of all, I can’t believe it won’t be reviewed (and therefore depublished) by the Cal Supremes.  Second of all, this doesn’t mean that (1) a follow-up court of appeal won’t accept some kind of McDonnell Douglas-Burdine like analysis of the circumstantial evidnece of non-obvious discouragement, or that (2) this is the end of wage-hour class actions.

All of this site’s commentary on Brinker throughout its history is avaialble by clicking on the “Brinker” item on the billtrack bar to the left.

UPDATE: The Governor even had a statement on this case.

The Court of Appeal for the Fourth District followed up on its earlier unpublished opinion in Brinker v. Superior Court (Hohnbaum) with a new (temporarily at least) published opinion.

This is a huge victory for employers on two counts.  First, employers no longer have to frog march their employees out to meal periods.  Second, class certification is not appropriate where the individual issue of unlawful prevention of taking a meal period prevails over the class-wide question.

The first part, of course, reverses the policy that employers had to ensure that employees took a meal period in response to concerns that passive allowance as opposed to active insistence would lead to “wink-wink nod-nod” abuses inconsistent with written policies.

The other side of the equation has to do with the proliferation of wage and hour class actions based on essentially unprovable facts leading to huge settlements.  With the legislature and executive in the hands of different parties, the Courts will be taking the lead on these issues for now, since no bill addressing this is likely to clear.  So, apparently, this Court of Appeal decided to put the brakes on both the class actions and the meal period cases.

But, don’t change that handbook yet.

This case was already headed to the Supremes before the Court of Appeal yanked it back.  No doubt it will be back there, and we’ll be on Brinker watch yet again.  I supposed tehcnically, until this case is certified for review, you don’t have to do anything other than make meal periods available.  But who knows how long that would be.

I would simply not change anything until this is resolved.