WageLaw posted an opinion piece on the Brinker case today. In the spirit of bloggy dialogue, I thought I would respond.
Knapp writes that “[i]n recent years, defense lawyers have enjoyed a pro-business trend in California court decisions. The Court of Appeal’s decision in Brinker Restaurant Corp., et al. v. Superior Court of San Diego, 2008 DJDAR 11267, which many of us have been watching closely, is no exception”
Knapp is correct. We lawyers have been enjoying a pro-business trend in California court decisions. This is because the more the law changes, the more litigation there is, and, so we lawyers enjoy it. That is not to say that employers themselves have enjoyed it. Sure, a poll of employers would probably find strong support for the Court of Appeal’s holding, but a poll asking whether they would prefer tougher easy to follow consistent rules over more lenient more complex rules would, I am sure, go the other way. We lawyers benefit as long as there is change and rue the day that we won’t be needed as much.
Of course the policy argument behind this controversy is exactly as Knapp states it:
The Court of Appeal’s holding focuses too narrowly (and too inflexibly) on a pointy-headed dictionary definition, ignoring the practical context in which these rights are exercised, or not. In a busy, time-constrained work environment, there are many natural disincentives to take breaks. Managers and supervisors, even while recognizing break rights, often look askance at them and the employees who dutifully take them.
Employees who work through their breaks, or take shorter breaks, may get more praise and credit than those who don’t. The dynamic is intensified in an uncertain economy and for many immigrant groups who can be exceedingly obedient and timid.
There is no denying that the last decades have seen a aggregation of consumer and shareholder power that has caused the real cost of the production of goods to drop by, among other things, forcing worker productivity up. At the same time, the primary medium for aggregating worker power, unions, has declined precipitously. Therefore, at least from a macro view, there is no denying that businesses face powerful incentives to keep workers from taking breaks. Those incentives have their source, ironically, in many of the same people that are the workers who shop at places like Wal-Mart or hold shares in a pension fund.
In the courts, worker power can be aggregated, of course, by class actions. As Knapp points out, the Brinker case effectively works to eliminate the financial incentives of plaintiff’s attorneys to litigate these cases. Of course all of this is a question of policy. The pure legal reading of the statute probably lies in the “pointy-headed dictionary definition,” as Knapp puts it. So, if the standard interpretive tools used on the Labor Code are applied, what should the rule be?
Certainly there are instances where reducing break’s to “make available” from “insured” will make this statutory right de facto non existent, contrary to the “liberal interpretation” rules. But there are other cases where the aggregation of power works in reverse. Can a business with a small number of employees withstand a wage/hour lawsuit with all of its non-exempt employees as a class? Some can’t survive even a single Plaintiff’s case. There are situations also where the abuse of this rule are not likely to exist or where the employees actually prefer them.
It seems to be these different circumstances are what the Wage Orders, when they had a funded panel to write them, were meant to address. I would conclude that there is no right answer on this, because either way it’s going to wrongfully impact somebody. Ideally, the Supreme Court will find a way to craft a rule that allows for the higher scrutiny of “ensure” in cases where there is evidence of a systematic attempt to eliminate the statutory right, but will allow for leniency in cases where that is not the case, and workers simply choose to flex their time.
It’s equally wrong to put all employers in the same category. In some instances, there is a strength mismatch without class aggregation, but in the cases where there is not, I believe it is bad policy to ignore that.
Unfortunately, this doesn’t work out to a simple clear bright line rule which is what I argued for above. But clarity has to give way to a just result. Striking that balance is the trick.
