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?