News & Analysis

Safeway II restores some sanity in meal break class and PAGA actions

A group of California employees sued Safeway in 2007 for failing to pay the required meal break premiums when employees weren't permitted to take their 30-minute lunch breaks. To forgo individual lawsuits and proceed as a class, the employees had to come up with a theory of liability that was common to all Safeway employees. To do that, they told the court that instead of proving the value of the meal breaks they had individually missed, they would show their damages by proving the "market value" of the meal break premium guarantee.

Can employer find any silver linings in $102 million verdict?

Meal period and wage statement claims continue to haunt California employers. Most of you know you must factor nondiscretionary bonuses into the regular rate of pay when you calculate overtime. However, such bonuses also need to be factored into the regular pay rate when the one-hour meal period premium is calculated. In the following case, Walmart correctly factored the bonus payments into the overtime rate but didn't do the same thing for meal premium payments. That and a problem with its wage statements led to a $102 million verdict against the company. But the result could have been far worse.

You belong to me: Who gets to keep food and beverage hall service charges?

In the food and beverage business, employees own the tips customers voluntarily leave for them. Employers and managers can't take or keep any of the tips. But who owns the mandatory service charges restaurants and other businesses add to bills for large parties or for catering and special events? Both federal and state law make clear that the tax and wage treatment of service charges paid to employees is different from the treatment of tips, but what happens if the employer merely keeps the service charge? Does it matter whom the customer thinks the service charge is going to? Those questions were recently addressed in a case before the court of appeal.

Sexual harassment witness isn't off-limits

An employee's claims of sexual harassment and assault can often create an emotional litigation environment. Coworkers and supervisors become entangled in the case as witnesses, or victims, or alleged attackers, and relationships and alliances become confusing. Whose side is the employer on, and which employees speak for the employer?

Individual coverage HRAs probably not option for 2020

On his very first day in office, President Donald Trump issued an Executive Order instructing federal agencies to lessen the Affordable Care Act's (ACA) burden on the organizations and individuals who were subject to its requirements. More than two years later, the ACA is limping along, but the Trump administration is still working to carry out that order.

How to identify and minimize employee burnout

You may have seen reports recently that the World Health Organization (WHO) has classified employee burnout as a diagnosable medical condition. While that's not exactly accurate, the group has expanded its definition of the term in its latest edition of the International Classification of Diseases.

Workplace Trends

Think you've made a hire? Maybe not. A survey from staffing firm Robert Half shows that more than a quarter of workers (28%) have backed out of a job offer after accepting the position. Why would a jobseeker do that? The survey says 44% of those changing their minds backed out after receiving a better offer from another company. For 27%, a counteroffer from their current employer led to the change of heart. In 19% of the cases, the jobseeker reported hearing bad things about the company after receiving the offer. The cities where jobseekers are more likely to renege are San Diego, San Francisco, Chicago, Houston, Austin, and Miami.

Union Activity

UAW urges Congress to review labor laws. The United Auto Workers (UAW) in June called on Congress to take a comprehensive look at the country's labor laws and rules from the National Labor Relations Board (NLRB) affecting the UAW's ability to form a union at the Volkswagen plant in Chattanooga, Tennessee. UAW spokesperson Brian Rothenberg said Volkswagen was able to delay bargaining and a vote "through legal games." Calling the labor laws "broken," Rothenberg said workers shouldn't have "to endure threats and intimidation in order to obtain the right to collectively bargain." He said current law "caters to clever lawyers who are able to manipulate the NLRB process."

8th Circuit: Showing up is a big part of any job

Recently, the U.S. Court of Appeals for the 8th Circuit (whose rulings apply to all Arkansas employers) considered the importance of attendance as an essential job function. The court found that without regular and reliable attendance, an employee wasn't qualified to perform her job at the time of her discharge and couldn't satisfy the minimum standard for pursuing a disability discrimination claim under the Americans with Disabilities Act (ADA).

Being 'married to the job' doesn't mean you can't be fired

While the U.S. Constitution doesn't protect the rights of employees in the private-sector workforce, it does allow public-sector employees to sue their governmental employer for violating their constitutional rights. Recently, the 8th Circuit addressed when the right to freedom of association protects an employee from termination.