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October 30, 2012

Life After Brinker: The California Supreme Court’s Decision in Brinker and Recent Decisions That Have Followed Mandana Massoumi and Cherise S. Latortue

Earlier this year, California employers received some long awaited guidance from the California Supreme Court on the issue of meal and rest break periods. On April 12, 2012, the California Supreme Court decided Brinker Restaurant Group v. Superior Court of San Diego, 53 Cal.4th 1004 (2012), providing guidance on how California employers can attempt to demonstrate compliance with the state’s meal and rest break regulations. In short, Brinker confirmed employers only have a duty to “provide opportunity” for employees to timely take their meal and rest breaks; they need not “ensure” those breaks are taken. Now, months later, other courts have followed Brinker, further clarifying the applicable standard for ensuring compliance with these break regulations. This article reviews some of the key holdings of Brinker and a few of the recent decisions that have followed, providing some recommended best practices going forward.

The Regulations

The law governing rest breaks is articulated in the California Wage Order, which notes the following critical requirements:

• “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.”

• “The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.”

• “However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half hours.”

The State’s Division of Labor Standards Enforcement (“DLSE”), headed by the California Labor Commissioner, interprets this as requiring not less than ten minutes in a rest area away from the work area if the employee so desires. (See DLSE Manual § 45.3.3.)

The requirements for meal breaks are codified in Section 11 of the Wage Orders and California Labor Code Section 512. Labor Code Section 512 specifies that employers are required to provide their non-exempt employees with a meal break of at least 30 minutes for every period of no more than five hours. However, if the work period is no more than six hours for the day, the meal period may be waived by mutual consent (and, if employee works more than 10 hours per day, a second 30 minute meal period must be provided, except if the total work period is not more than 12 hours, the second meal period may be waived by mutual consent if the first meal period was not waived). The Wage Orders have similar language but include a requirement that employee be “relieved of

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all duty” during the 30-minute meal period. If not relieved of all duty, the meal period shall be considered an “on duty” meal period and counted as time worked. On duty meal periods are permitted “only when the nature of the work prevents an employee from being relieved of all duty” and there is a written agreement between the employer and employee agreeing to the on-duty meal period.

California Supreme Court’s Decision in Brinker

The California Supreme Court initially granted review of Brinker in 2008. Nearly four years later, the Court issued its long awaited decision on April 12, 2012. The opinion addressed the following four critical issues: class certification issues; rest breaks; meal breaks; and off-the-clock work.

On the Class Certification issue, the court had to consider if the trial court was required to resolve legal and factual disputes in order to determine whether individual or common issues predominated the case, and thus whether a class action was proper. The Court held trial courts must only resolve “any legal or factual issues that are necessary to a determination of whether class certification is proper. . . .” (Id. at 1023.) The Court noted: “If the defendant’s liability can be determined by facts common to all member of the class, a class will be certified even if the members must individually prove their damages.” (Id. at 1022.)

On the issue of off-the-clock work, the Court had to determine whether common issues predominate for class of members “who worked off the clock or without pay?” The Court held that no evidence supported the trial court’s decision that there was a common policy or common method of proof. In contrast to the rest period claim, the Court expounded, the only formal policy “discusses such work, consistent with state laws.” (Id. at 1051.) The Court found off-the-clock claims were not appropriate for class treatment, as Plaintiff has the burden of demonstrating the employer “knew or should have known” of the off-the-clock work.” Specifically, the Court noted “[t]hat employees are clocked out creates a presumption they are doing no work, a presumption … putative class members have the burden to rebut.” (Id. at 1051.)

Next, the Court considered the issue of rest breaks and determining the rate at which rest time must be authorized and permitted for the purpose of rest breaks. In one of the few cases decided by the California Supreme Court with a mathematical formula, the Court provided the following formula for purposes of calculating rest breaks: “Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours and up to 14 hours, and so on.” (Id. at 1029.) The Court also noted that rest breaks must be authorized and permitted. It held:

Employers are. . . subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. At the certification stage, we have no occasion to decide, and express no opinion on, what considerations might be legally sufficient to justify such a departure. (Id. at 1031.)

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The Court further explained as follows:

Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention. (Id. at 1031.)

Employers [must] make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. (Ibid.)

In the context of an eight hour shift, as a general matter, one rest break should fall on either side of the meal break. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule. (Ibid.)

Based on this, the Court found the certification of the rest period subclass was not proper. The Court explained that “[c]lasswide liability could be established through common proof if [Plaintiffs] were able to demonstrate that, for example, Brinker under [its] uniform policy refused to authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight, hours.” (Id. at 1033.)

Next, the Court considered the issue of meal breaks and the nature of an employer’s duty to provide employees with meal periods. On this the Court specified that a key requirement of the law is for the employee to be relieved of all work; “[A]n employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does not work.” That said, the Court explained that employers have no obligation to “ensure” meal breaks are taken. Rather, have to provide opportunity for the break:

Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. . . . We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute. (Id. at 1038.)

If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’ (Id. at 1040, fn.19.)

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Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Id. at 1040.)

To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law. (Ibid.)

On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b). (Id. at 1040-1041.)

As for the timing of the meal breaks, the Court offered the following guidance:

We conclude, that absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work. We conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5 does not impose additional timing requirements. (Id. at 1041.)

Based on this, the Court found that the defined class in Brinker was overbroad and the trial court’s decision to certify the class was based on an erroneous legal assumption that Section 512 required a meal period every five hours. The Supreme Court remanded the question of meal subclass certification to the trial court for reconsideration in light of the clarification it provided.

Life After Brinker: Decisions Since Brinker

When the Supreme Court granted review of Brinker in 2008, seven similar wage and hour cases were given “grant and hold” status: Brinkley v. Public Storage, Inc., Flores v. Lamps Plus, Hernandez v. Chipotle Mexican Grill, Inc., Tien v. Tenet Healthcare, Bradley v. Networkers Int’l,

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LLC, Faulkinbury v. Boyd & Associates, and Brookler v. Radio Shack Corp. Following the Brinker decision, all seven cases were remanded to their respective Courts of Appeal, with instructions to vacate their prior decisions and analyze the cases in light of Brinker. Of these seven cases, four have been recently decided, three of which have been published. All reaffirm Brinker.

The first is the unpublished opinion of Brinkley v. Public Storage, Inc., 2012 WL 3126606 (Cal. App. 2d Dist. Aug. 2, 2012), wherein plaintiffs sought a class action suit against defendant for failing to ensure that plaintiff and other class members took all meal and rest periods they were entitled to take. The trial court granted defendant’s motion for summary adjudication on the meal and rest break violations, which was upheld by the Court of Appeal’s post-Brinker decision. (Id. at *1.) In support of its motion for summary judgment, defendant introduced its policy, which stated: “all employees must take a 30-minute meal period whenever he or she worked at least five hours in a shift; employees may take two 10-minute rest periods each day which should be scheduled midway through the morning and midway through the afternoon, if possible; and employees had to sign in and out during their meal break.” (Id. at *2.) Further, defendant’s senior vice president testified employees were reprimanded for working during lunch. (Ibid.) Additionally, defendant introduced evidence that it advised plaintiff and other employees at a meeting that they were required to take rest and lunch breaks, and employees were reprimanded for working during lunch. (Ibid.) Plaintiff’s evidence, however, consisted of testimony by two of the class plaintiffs that they regularly worked shifts longer than six hours and rarely took an uninterrupted lunch within the first five hours of their shift, and plaintiff’s timecards which indicated he did not take a meal break until more than five or six hours after his shift commenced. (Ibid.)

The trial court granted Plaintiff’s motion for class certification on his meal period claims. (Id. at *2.) The meal period class included all nonexempt property managers who: (1) worked a period of more than 6 hours (a) without a meal period of not less than 30 minutes; or (b) without a meal period within the first five (5) hours of work or (2) worked a period of more than 10 hours per day (i) without being provided a second meal period of not less than 30 minutes, (ii) without a meal period within the second five hours of work except if (A) the total hours worked were not more than 12 hours per day, (B) the second meal period was waived by mutual consent, and (C) if the first meal period was not waived. (Ibid.) Defendant moved for summary judgment. The trial court granted the summary adjudication of the rest and meal break claims, and plaintiff appealed. (Ibid.)

Upon remand after the Brinker decision, the Court of Appeal upheld the trial court’s grant of summary adjudication, rejecting plaintiff’s claims that defendant was required to provide breaks, and ensure employees took their breaks, in light of Brinker. The Court specifically provided: “an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” (Id. at *5, quoting Brinker, supra, 53 Cal. 4th at p. 1017.) In support of its decision, the Brinker court reasoned defendant had produced substantial evidence that it provided meal periods. This included: (1) a written break policy of which plaintiff was aware; (2) disciplining employees for not taking breaks; and (3) advising Plaintiff and others of the requirement. They also submitted declarations from 21 managers stating they were allowed to take breaks at their own discretion. (Id. at *5.) Plaintiff’s evidence on the other hand, only indicated plaintiff and others missed breaks, but were not denied them. (Ibid.)

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The second case, Flores v. Lamps Plus, 209 Cal. App. 4th 35 (2012), which was decided on August 20, 2012, upheld a trial court’s denial of class certification because plaintiff failed to establish defendant had a common practice or policy of denying meal and rest breaks. In support of class certification on the meal and rest break claims, plaintiff submitted timekeeping records from a random sampling of putative class members analyzed by a mathematics and statistics expert who opined the records demonstrated that 91.9 percent of the sample employees experienced meal period violations. (Id. at 43.) Collectively, the plaintiffs testified they were either denied their lunch breaks, and/or were interrupted during their lunch breaks. (Id. at 44.) Five employees including plaintiffs submitted declarations that they missed meal and rest periods. (Ibid.) Finally, questionnaires completed by a sampling of the putative class noted employees often missed meal and rest breaks, or they always received either their meal break or their rest break, but not both. (Ibid.) The questionnaire did not ask why a break was missed. (Ibid.)

In opposition to class certification, Lamps Plus introduced its policy which required: non-exempt employees “must” take an uninterrupted meal period of at least 45 minutes after not more than five hours of work; employees are “entitled” to take a second meal period if they work more than 10 hours; employees must take meal periods and should not eat at their desks or work stations; employees are authorized to take a 15-minute paid rest period for every four hours, or major fraction of four hours worked; employees must sign an acknowledgment they had received a copy of Lamp Plus’ meal and rest break policy, they will comply with company policy, and if they are not provided meal and rest breaks, they would contact human resources. (Id. at 44-45.) Meal breaks were logged into the timekeeping systems. (Id. at 45.) Lamps Plus also provided evidence of disciplining employees for violations of its break policy. (Ibid.)

The trial court denied class certification on the grounds that individual issues predominated over common issues as to the meal and rest period claims, reasoning that employers need only “authorize and permit” them, “which means make them available, but not ensure they are taken.” (Id. at 45.) Upon remand following the Brinker decision, the Court of Appeal upheld the trial court’s decision, rejecting plaintiff’s argument that employers must ensure meal and rest breaks are actually taken, and noting plaintiff’s misplaced reliance on Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, (2005). Lamps Plus, supra, at 51. Briefly, Cicairos involved an appeal from summary judgment in favor of an employer regarding employees’ meal and rest period claims, which was reversed by the Court of Appeal on the grounds triable issues of facts existed as to whether the employer’s policy on meal and rest breaks violated California law where the employer pressured its truck-drivers to make a certain number of trips per day, tracked their progress with a tracking system which did not include a code for rest stops, and did not schedule meal breaks; the employer’s policy essentially deprived its employees of meal and rest periods. Cicairos, 133 Cal. App. 4th at 955-956. In distinguishing Lamps Plus from Cicairos, the Court noted, “the mandate that an employer may not frustrate the exercise of employee’s meal breaks is not equivalent to an obligation to ensure that an employee actually takes the break. Unlike the employer in Cicairos, in this case, there is over-whelming evidence that Lamps Plus's policies allowed and encouraged meal periods.” Lamps Plus, supra, at 50-51. The Court further provided:

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The evidence establishes that Lamps Plus had a meal and rest period policy conforming to the applicable laws and wage orders, and that Lamps Plus disciplined its employees for failing to comply with the policy. Further, the breadth of supposed “violations” is widely variable. Some employees declared they often missed meal and rest breaks; others declared they always received their meal and rest breaks; and still others declared that they always received either their meal break or their rest breaks, but not both. Some employees declared their meal breaks were uninterrupted, and others claimed interruptions of varying degrees. Even the named plaintiffs have divergent experiences, despite all having worked at the same store and reported to the same manager. They each report a different number of alleged violations and differing reasons for the claimed violation. (Id. at 54.)

. . .

[O]f the 40 questionnaires turned in by Lamps Plus employees, over half of the responding employees said Lamps Plus required them to work off the clock. On the other hand, almost half of the responding employees reported no off-the-clock work. Even the named plaintiffs did not uniformly report working off the clock. With almost as many employees reporting they were not required to work off the clock as those who claimed they were, the evidence does not lead to an inference there was a companywide policy requiring such work. Also, the evidence does not demonstrate Lamps Plus knew of any widespread off-the-clock work. The employee questionnaires were nonspecific and asked general questions, such as “Did you ever perform work after hours?” without inquiring whether any Lamps Plus manager had knowledge of this work. Lamps Plus had a policy requiring employees to record the hours worked. Determining whether Lamps Plus managers knew or should have known about off-the-clock work will be a fact-intensive inquiry, necessarily involving investigation of the individual circumstances of each employee's off-the-clock work.

(Id. at 56.) (emphasis added.) In sum, the Court of Appeal noted, “[g]iven the variances in the declarations, questionnaires, and deposition testimony, plaintiffs failed to demonstrate a common practice or policy.” (Ibid.)

The third, Hernandez v. Chipotle Mexican Grill, Inc., 208 Cal. App. 4th 1487 (2012), was brought by a former employee on behalf of himself and potential class members, for alleged violations of meal and rest breaks. Chipotle moved to deny class certification, contending it had met its responsibility to provide breaks. In support, Chipotle submitted its written break policy, declarations of several employees and managers, and the declaration of its human resource director. First, Chipotle’s break policy mandated managers to provide employees with one uninterrupted 30–minute meal break if they worked over five hours, and two 30–minute meal breaks if they worked more than 10 hours. (Id. at 1491.) Employees received a 10–minute rest break if they worked three and one-half hours or more; they received two rest breaks of at least 10 minutes each if they worked more than six hours a day. (Ibid.) All breaks were paid and employees were provided free food and beverages to encourage employees to take their breaks. (Ibid.) Second, declarations from 57 employees attested they had all received meal and rest breaks, and some employees occasionally forgot to record their times, or recorded them

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inaccurately. (Ibid.) Third, declarations from 16 managers provided employees received meal and rest breaks, they were not permitted to return early from breaks, and employees had no financial incentive to accurately record their break times because the breaks were paid. (Id. at 1491-1492.) Finally, the lack of financial incentive was supported by a declaration from Chipotle’s human resource director. (Id. at 1492.)

On the other hand, Hernandez submitted the following in support of his class certification motion: a compilation of his time records; excerpts from his deposition in which he testified that his managers interrupted his meal breaks two to three times a week; and declarations from a total of 23 non-management, (hourly) employees who claimed they were not provided breaks or were interrupted by managers during their breaks. (Id. at 1492-1493.)

The trial court denied class certification on the grounds that although plaintiff had established numerosity, ascertainability, typicality, and adequacy, he failed to show individual issues did not predominate over common issues, and class treatment were superior to an individual action. (Id. at 1493-1494.) With respect to the rest break claims, the trial court held, as conceded by Hernandez, employers need only authorize and permit such breaks; that is, employers were only obligated to make the breaks available. (Id. at 1494.)

On August 21, 2012, the Court of Appeal in Hernandez agreed with the trial court, reasoning that while Plaintiff’s evidence only showed that some employees had missed their breaks, Chipotle’s evidence showed it had met its duty to provide employees breaks. (Id. at 1501-1502.) In so finding, the Hernandez decision noted that Brinker had resolved the very issue contrary to Hernandez’s position: “bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.” (Id. at 1499.) In so finding, the Court of Appeal, as in Brinkley, noted plaintiff’s reliance on Cicairos was misplaced for two reasons: (1) the Cicairos court relied on an opinion letter from the Department of Labor, DLSE, which stated in pertinent part that “[u]nder the facts presented ... the [employer's] obligation to provide the plaintiffs with an adequate meal period [was] not satisfied by assuming that the meal periods were taken, because employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty,” which the DLSE later withdrew; and (2) Cicairos's conclusion did not depend upon an “ensure” standard; rather, the facts “were such that the employer's business practices effectively deprived employees of the ability to take meal breaks.” (Id. 1499.) The Court further held that “the only evidence of a company-wide policy and practice was Chipotle's evidence that it provided employees with meal and rest breaks as required by law,” and whether there was employer liability required an individualized inquiry as to why any particular employee missed a particular break. (Id. at 1502.)

The fourth case, Tien v. Tenet Healthcare, Corp., __ Cal. Rptr. 3d __ (Oct. 4, 2012), is the most recent post-Brinker decision. Plaintiffs filed for themselves and on behalf of others similarly situated, an amended complaint against defendant alleging failure to pay additional wages for missed periods and rest breaks. Certification was sought on four classes: missed meal periods; missed meal breaks; waiting time penalties; and pay stub violations. Following the Second District’s decision in Brinkley, the trial court denied class certification. When the Supreme Court granted hold-and-review of Brinkley, plaintiffs-appellants asked the court to vacate its denial of

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certification, on the grounds Brinkley was no longer citable and Cicairos, supra, was the only published authority on the matter. The trial court declined to change its denial of class certification, reasoning that Cicairos appeared to be a minority view which was adopted by one court, when several other courts have taken the Brinkley/Brinker view which seemed stronger. Appellants filed a petition for review. The Court of Appeal in Tien, upon remand following Brinker, upheld the trial court’s denial of class certification, noting substantial evidence supported denial of certification.

With regards to plaintiff’s meal and rest break claims, defendant’s evidence consisted of a written meal and rest break policy, which included an electronic time-keeping record system (Kronos)—employees were required to record their meal and rest period on Kronos. Tenet’s evidence indicated employees did not always comply with Kronos thus certain employees received meal periods although their time records showed otherwise, some employees signed lawful waivers for meals they missed, which was not accounted for in the definition of the class, some employees signed missed meal logs while others did not, some employees did not use Kronos but rather, signed correction slips documenting they took their meals; and some employees shorted the clock by starting their meal breaks before clocking out. Based on the evidence present, the Court of Appeal found the trial court’s finding that individual questions of proof predominated, coincided with Brinker, that is: the reasons why any particular employee might not take a meal period are more likely to predominate if the employer need only offer meal periods, but need not ensure employees take their meals.

As for the rest break claims, the Tien court upheld the trial court’s denial of class certification on the grounds that Tenet’s written policy made 10-minute rest breaks available after every four hours of work, and given Tenet was obligated only to offer, not ensure, rest breaks, employer liability only arose if its policy was in name only and unobserved in practice. Given the trial court found employees did not record their 10-minute breaks on Kronos, any reasons employees might not take their breaks were predominantly individualized questions of fact.

The remaining remanded cases, Bradley v. Networkers Int’l LLC, 2009 WL 265531 (Cal. App. 4th Dist. May 13, 2009), rev. granted May 13, 2009; Faulkinbury v. Boyd & Assoc., 112 Cal. Rptr. 3d 72 (2010), rev. granted Oct. 13, 2010; and Brookler v. Radio Shack Corp., 2010 Cal. App. LEXIS 1674 (Cal. App. 2d. Dist. Sept. 13, 2010), rev. granted Nov. 17, 2010, are still pending in the lower courts.

Best Practices and Key Considerations

In light of the on-going litigation related to the meal and rest break compliance and guidance provided by Brinker, the following are some key considerations to keep in mind as you attempt to ensure compliance with California’s meal and rest break regulations:

1. Rest Break Policies: Some recommended practices that would assist in meeting the obligations set by the Court include:

• Review existing policies to ensure they are properly drafted and updated. Take note of the clarification Brinker provides on rest breaks.

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• Make sure the rest break policy addresses circumstances when employees work “major fractions” of four-hour periods. If employees work more than six hours, they will need a meal and two rest periods.

• Train managers to properly enforce the policy and provide opportunity for and not interfere with the breaks.

2. Meal Breaks: Similarly review the policy and properly document and train managers to ensure compliance.

• If an employee works through lunch, ensure they are paid.

• Consider scheduling alternatives if employees have to work shifts that are longer than eight hours.

• Require employees to record meal breaks unless all operations cease.

• Ensure the meal break is timely scheduled – “before the end of the fifth hour of work.”

• Ensure all breaks are “duty free” – be clear that employees should not work and are free to leave the premises.

3. Shift the Burden: Consider a timecard certification program.

4. Investigate Violations: If appropriate, pay the penalty for violations.

5. Consider discipline of non-compliant employees and look for patterns in departments which may indicate supervisor interference.

© 2012 Dorsey & Whitney LLP. This article is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued by reading this article. Members of the Dorsey & Whitney LLP group issuing this communication will be pleased to provide further information regarding the matters discussed therein.