California Labor & Employment Law Blog

By Mark S. Spring

According to an opinion piece in the Wall Street Journal last month, it is.  Professor Richard A. Epstein, a well respected University of Chicago law professor, argues that even if the Employee Free Choice Act is enacted this spring, it should be struck down by the United States Supreme Court as being a violation of the United States Constitution.  More specifically, Professor Epstein opines that (a) the elimination of the secret ballot election is a violation of the First Amendment and that (b) the Fifth Amendment is violated by the mandatory interest arbitration provisions of the Act.

There is no question that if the EFCA is enacted it will have an immediate major impact on union organizing and will shift the balance of power from employers to unions.  In fact, virtually all on the employers' side of the line feel that the Act would be an overreaction and shift the balance much more than is necessary, creating a whole set of new problems.  The other thing that is not in doubt is that if the EFCA is enacted, employers' groups will deploy any and all weapons to try to fight it, including constitutional challenges.

To read the complete WSJ article by Professor Epstein, click here. 

As a reminder, we will be hosting workshops on EFCA in all of our California offices during the week of February 2-6, 2009.  If you are interested in attending one of these workshops, click here for our more detailed brochure and the registration form.
 

On July 25, California's Labor Commissioner, Angela Bradstreet, issued a memo to all Department of Labor Standards Enforcement staff regarding the recent California Court of Appeal decision in Brinker v. Superior Court (Hohnbaum).  The Labor Commissioner specifically instructed, "All staff must follow the rulings in the Brinker decision effective immediately and the decision shall be applied to pending matters."  As a result, the DLSE will apply the following rules regarding meal and rest breaks:

1.  Employers must provide meal periods by making them available, but need not ensure that they are taken.  Employers, however, cannot impede, discourage or dissuade employees from taking meal periods.

2.  Employers are not required to provide a meal period for every five consecutive hours worked.  There is no "rolling five-hour" meal period requirement.  Instead, employers simply must make a 30-minute meal period available to an employee who is permitted to work more than five hours per day (unless a valid waiver is in place for an employee whose shift is six hours or less).  If the employee takes a meal period early in his/her shift and then works an additional five hours, there is no requirement to provide the employee with a second meal period (unless the employee works more than 10 hours per day, in which case a second meal period must be made available absent a valid waiver).

3.  Employers must provide rest breaks, but need not ensure that they are taken.  Employers, however, cannot impede, discourage or dissuade employees from taking rest periods.  Rest periods must be authorized and permitted every four hours or major fraction thereof.  "Major fraction thereof" means the time period between three and one-half hours and four hours.  Therefore, if an employee works between three and one-half hours and four hours, a rest period must be provided.  However, if the employee works more than four hours, a rest period must be provided only every four hours, not every three and one-half hours.

4.  Employers are not required to authorize and permit a first rest period before the first meal period.  As long as employers make rest periods available to employees and strive, where practicable, to schedule them in the middle of the first four-hour work period, employers are in compliance with the Wage Orders.

Employers with pending or future meal and rest break claims before the DLSE will want to review both the Labor Commissioner's July 25 memo, as well as the Brinker decision.  To review the full text of the Labor Commissioner's memo, click here: http://www.dir.ca.gov/DLSE/Brinker_memo_to_staff-7-25-08.pdf

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