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California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals
A il 24 2012April 24, 2012
CHA Webinar
Welcome and ProgramWelcome and Program Overview
Liz Mekjavich
California Hospital Associationp
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California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals
G il Bl h d S iGail Blanchard-Saiger
California Hospital Association
Polling Question
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Agenda
B i f hi t f l d t i d l Brief history of meal and rest period rules
Summary of the Brinker decision
Operational impact
Recommendations
Questions
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Questions
Brief History
Meal Periods
1940 – 1999
Rule contained in Wage Orders
Special health care rules adopted in 1993
“Hours worked”
W i f d l i d
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Waiver of second meal period
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Brief History
Meal Periods
2000 2000
AB 60/ Labor Code 512
IWC amends Wage Order 5
Employees in the health care industry can waive one of their two meal periods
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“Penalty” adopted
Exclusion for public hospitals
2001
Labor Code 226.7 – “penalty” codified
Brief History
Rest Periods
1940 – present
Rule contained in Wage Orders
IWC adopts “penalty” in 2000
Labor Code 226.7 – “penalty” codified
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Brief History
Meal and Rest Period Litigation
Kenneth Cole Decision (2007)
226.7 “penalty” is a wage
Four-year statute of limitations
Attorneys’ fees and costs recoverable
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Explosion in class action litigation
Brinker Case Summary
Restaurant industry
Interprets Labor Code 512 &Wage Order 5
Substantive issues
Rest periods
Off-the-clock work
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Meal periods
Class certification issues
Clarification of existing law
“Retroactive” effect
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Brinker Case Summary
Rest period claim
Employees not authorized and permitted sufficient number of breaks
Timing
Off-the-clock work claim
Employees worked off the clock during their meal
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p y gperiods or managers altered meal break records
Lunch break claim
“Provide”
“Early lunch”
Brinker Case Summary
Rest Period Claim
Policy stated “If I work over 3.5 hours during my shift, I understand that I am eligible for one, ten minute rest break for each four hours that I work”
Did not include the phrase “major fraction thereof”
S b t ti l id f if t b k li
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Substantial evidence of a uniform rest break policy authorizing breaks only for each full four hours worked
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Brinker Case Summary
Rest Period Decision
Facially invalid policy
Class certification appropriate
Number of rest periods
3½ – 6 hours – 10 minutes rest
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6+ – 10 hours – 20 minutes rest
10+ – 14 hours – 30 minutes rest
And so on …
Brinker Case Summary
Rest Period Decision
Timing: “Insofar as practicable” in the middle of each work period
Employers must make a good faith effort, “but may deviate from that preferred course where practical considerations render it
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where practical considerations render it infeasible”
Court declines to give an opinion on what considerations would be legally sufficient
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Brinker Case Summary
Off-the-Clock Work Claim
Policy stated “It is your responsibility to clock in and clock out for every shift …working off the clock for any reason is considered a violation of company policy …”
Employees clocked out for lunch and continued
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Employees clocked out for lunch and continued working or managers altered time records to reflect a meal period when none was taken
Brinker Case Summary
Off-the-Clock Work Decision
Facially valid policy
Rebuttable presumption that no work is performed when employee is clocked out
Employees have the burden to provide substantial id f if id li
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evidence of a uniform, company-wide policy or practice of off-the-clock work
Only anecdotal evidence was submitted
Class certification inappropriate
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Brinker Case Summary
Meal Period Claim
Employer must ensure that employees perform no work during the meal period
Employer practice to have employees take an “early” lunch and then work more than 5 consecutive hours was unlawful
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consecutive hours was unlawful
Brinker Case Summary
Meal Period Decision
Employer’s obligation to “provide” a meal period
Relieve the employee of all duty
Relinquish control
Free to leave the premises
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Permit a reasonable opportunity to take an uninterrupted 30 minutes
Do not impede or discourage employees from taking their meal period
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Brinker Case Summary
Meal Period Decision
What does this mean? (pg. 36)
It is an affirmative duty
“What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the fully range of approaches that
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proceeding delineate the fully range of approaches that in each instance might be sufficient to satisfy the law”
“The employer is not obligated to police meal breaks and ensure that no work thereafter is performed.”
Brinker Case Summary
Meal Period Decision
If work continues during the meal period
Employer is liable for straight time pay if it knew or should have known the employee was working
May result in overtime if working through the meal period means that employee works more than 8
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period means that employee works more than 8 hours
But employer is not liable for premium pay
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Brinker Case Summary
Meal Period Decision
Timing
Employees working 5+ hours up to 10 hours
Meal period must be provided within the first 5 hours of work
6-hour waiver
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6 hour waiver
Employees working 10+ hours
Second meal period must be provided within the first 10 hours of work
Waivers
Brinker Case Summary
Meal Period Decision
Class certification
Rested on an erronous legal conclusion — the rolling 5 approach
Class was over-inclusive
R d t th t i l t t i i li ht f th
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Remand to the trial court to review in light of the court’s substantive ruling
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Brinker Case Summary
Special Health Care Rules
Waiver
Allows employees in the health care industry to waiver either meal period
Does not include a 12-hour cap
F t l th i
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Free to leave the premises
Wage Order 5 health care exception
Court does not specifically address
Brinker Case Summary
Class Certification Decision
Language indicating support of class action certification (pg. 26)
Deference to the trial court’s decision
The concurring decision
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Only two justices joined, including the justice writing the majority opinion
Impact is unclear
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Operational Impact
Rest Periods
Timing
In surgery
Patient care considerations
How many must be authorized and permitted?
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Combining
What type of relief is necessary?
Documentation
Operational Impact
Off-the-Clock Work
Need to be diligent
Knew or should have known
Insist on accurate time records
Discipline employees who violate hospital policy
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Consider impact of electronic health records, etc.
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Operational Impact
Meal Periods
Timing
8-hour shifts
10-hour shifts — incremental overtime
12-hour shifts
i h i
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Without waivers
With waivers
15-hour shift???
Operational Impact
Meal Periods
What type of relief is necessary
Must be based on actual hours worked not scheduled hours
Flexing off
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Overtime
Callback
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Operational Impact
Meal Periods
Uninterrupted
Cell phones, etc.
Monitors in the break room
How to demonstrate a meal period was id d
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provided
Patient care
Non-patient care
Recommendations
Active management of meal and rest breaks Get a multi-disciplinary team in place
HR Finance and Payroll IT/HRIS Nursing, other patient care and non-patient
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care departments Legal
Evaluate current operations for meal and rest period compliance
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Recommendations
Make decisions on areas of risk:
Whether to:
Pay “penalties” automatically; if so when
Place burden on employee to claim; if so, how
Flags for automated time and attendance systems
Adopt some other policy
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p p y
Whether to use waivers and on-duty meal period agreements; if so, when
Whether to require employees to start the meal period within the first 5 hours
Recommendations
Determine how to demonstrate meal periods were “provided”
Schedules
Staffing sheets
Floaters
Determine how to demonstrate rest periods
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Determine how to demonstrate rest periods were authorized and permitted
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Recommendations
Review and revise off-the-clock work policy
Including a mechanism to report concerns
Review and update meal and rest period policies, forms, waivers, etc.
Implement attestation/certification
M l i d id d
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Meal periods were provided
Rest periods were authorized and permitted
Recommendations
Periodically audit time records and premium payments
Lack of premium payments tell a story
Train managers and employees on hospital policy and processes
At time of hire
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At time of hire
At time of promotion to manager
Annually
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Thank you
Gail [email protected](916) 552-7620
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Putting the Brinker Decision into Practice
Natasha Milatovich, MBA, MHRMWhite Memorial Medical Center
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Thank you
Natasha [email protected](323) 268-5000
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Questions
Online questions:Online questions:Type your question in the Q & A box, hit enter
Phone questions:To ask a question hit 14To ask a question hit 14 To remove a question hit 13
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2012 Publications
California Hospital Survey Manual (New publication)
California Hospital Compliance Manual
Consent Law
Principles of Consent and Advance Directives
Minors and Health Care LawMinors and Health Care Law(Available May 2012)
California Health Information Privacy Manual(Available Summer 2012)
More info at www.calhospital.org/publications39
Upcoming Programs
Consent Law A il 26 I i M 8 S R M 9 S tApril 26, Irvine; May 8, San Ramon; May 9, Sacramento; May 22, Universal City
California Supreme Court Brinker Decision: What it Means to Hospitals, Web SeminarApril 24, 10:30 a.m. – Noon, PT
California Congressional Action ProgramMay 6 9 Washington DCMay 6 – 9, Washington, DC
Health Information Privacy, Web SeminarMay 16, 10 a.m. – Noon, PT
Hospital ReimbursementJune 5, Sacramento; June 20, Glendale; June 21, Irvine
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Thank You and Evaluation
Thank o for participating in toda ’sThank you for participating in today’s briefing. An online evaluation will be sent to you shortly.
For education questions, contact Liz Mekjavich at (916) 552-7500 or [email protected].
Partners:California Hospital AssociationCalifornia Hospital Patient Safety OrganizationHospital Council of Northern and Central CaliforniaHospital Association of Southern CaliforniaHospital Association of San Diego and Imperial Counties