Employment Law Blog

Filter:  Division of Labor Standards Enforcement

The Definition of “On-Duty” and “Off-Duty” Periods

Employees must be relieved of all duty during their meal and rest breaks. Brinker, 53 Cal.4th at 1035–1036; Faulkinbury v. Boyd & Associates (2013) 216 Cal.App.4th 220, 236. During breaks, an employee “must be free to attend to any personal business he or she may choose.” Brinker, 53 Cal.4th at 1036. An employee is working and “on duty” when he is “subject to the control of an employer,” “including all the time the employee is suffered or permitted to work, whether or not required to do so.” Wage Order No. 9 § 2(H). Time spent by an employee waiting on standby for the benefit of the employer is considered to be on duty. Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.

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Certification of a Class Under California Law

The California Supreme Court has identified three requirements for the certification of a class: (1) “the existence of an ascertainable and sufficiently numerous class”; (2) a well-defined community of interest”; and (3) “substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4th 1004, 1021. The community of interest requirement in turn has three factors: (1) common questions of law or fact predominate over individual questions; (2) the class representatives have claims or defenses typical of the class; and (3) the class representatives can adequately represent the class. Id.

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Meal and Rest Breaks for “On Call” Health Care Employees

As the California Supreme Court has noted, an employer meets the requirements of the applicable Wage Order’s meal period requirement if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Id. at 1036.

However, in the health care industry, as discussed in a Division of Labor Standards Enforcement (“DLSE”) Opinion Letter approved by the Brinker Court, an employer may require an employee to remain on its premises, “so long as the worker is relieved of all duties during the meal period.” Dept. Industrial Relations, DLSE Opinion Letter No. 1996.07.12 (July 12, 1996) p. 1 (“1996 Opinion Letter”). In that Opinion Letter, the DLSE discussed whether an employee that is required to carry a pager during a purported meal period must be compensated. The DLSE determined that: “[s]o long as the employee who is simply required to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for. On the other hand, if the employee responds, as required to a pager call during the meal period, the whole of the meal period must be compensated.”

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