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In another effort by the Schwarzenegger administration to crack down on the class action lawsuits clogging California courtrooms, a proposed "lunch-break law" seeks to establish new rules for required employee meal-and-rest breaks. The suggested revision to Title 8 of Section 13700 from California's Division of Labor Standards Enforcement would only require employers to inform workers of their right to a meal period, rather than enforce a lunch break. As the law stands, employees must break for 30-minutes following their fifth hour of work.

Making California friendlier for business is at the top of Schwarzenegger's agenda, and the current regulations provide a raft of opportunities for class action lawsuits. Under the current incarnation of Title 8, which has been in effect since 2000, employers are vulnerable to litigation if a worker refuses to take meal breaks, an employee is not informed of his or her right to a break or an employer doesn't provide a break.

The revisions aim to set specific criteria to determine whether an employer has met the requirement of providing a meal period, thus decreasing opportunities for miscommunication between worker and employer and the litigation that often follows.

For most people working in hard-labor environments, the enforced 30-minute break is embraced as a necessary allowance in order to alleviate fatigue and promote safety. Title 8, though, hasn't sat well with many workers for whom time means money: restaurant servers, salespeople, the self-employed and anyone craving flexibility. Restaurant servers, in particular, have complained that the current law--the only one of its kind in the country--results in lost tips.

"There are two to eight new wage class-action lawsuits filed every day in California," says Richard J. Simmons, an attorney with Sheppard Mullin Richter and Hampton in Los Angeles, the author of Wage and Hour Manual for California Employers and a leading expert on California labor laws. "It's clear this is an entirely inflexible rule that benefits very few people."

Food Fight

The new proposal gives workers the option to decide when and if they need a break. By alleviating the burden on employers to provide mandatory breaks at specific times, the administration aims to decrease the number of lawsuits filed by workers who were denied breaks or, conversely, for lost wages while on break. California employers must still provide meal periods for workers who wish to take them, but the fifth hour rule will not apply.

More importantly, the governor's new proposal reduces the statute of limitations for employees to sue for violations of Title 8 from four years to one. Thus, employees could seek damages of one hour's pay for each day in which their employers didn't provide a rest break for up to only one year rather than the current four. Narrowing the time frame could cut down on the number of class action lawsuits filed as well as shield employers from having to pay up to four years of back pay for missed breaks.

Meanwhile, union leaders are in an uproar, maintaining the proposal is yet another example of the governor taking a heavy-handed approach to labor unions. They see the move as a way to create a loophole allowing workers to sign away their right to a work break, therefore weakening their right to a break.

"We're getting closer to sweatshop conditions with each labor right they chip away at," says Chloe Osmer, communications director for the California Labor Federation.

Labor groups also criticized the proposal because the governor initiated it under "emergency status" on a Friday evening the week before Christmas 2004, leaving only five days for public comment. In California legislators normally allow public feedback before laws are approved.

Due to criticism from pro-labor organizations, the administration agreed to rescind the emergency status of the regulations to allow time for comment. Three hearings, held in February and March, gave workers and employers a platform to voice their opinions on the proposed regulations. Necessary public concerns will be considered, says Jehan Flagg, the director of communications of the California Labor and Workforce Development Agency (CLWDA), which oversees the regulations.

"We represent the interests of both employees and employers," Flagg says. "Our goal is to make sure the regulations are implemented in the way the law was intended."

Shifting Responsibility

Although organized labor represents about 15 percent of California's workforce, labor leaders suspect most employers will use the new rules to pressure employees to work through their lunch hours.

"That is organized labor propaganda," Simmons says. "Ever since this law came out in 2000, workers have clamored for more flexibility."

Simmons contends that nine out of 10 employees want the changes. Indeed, many of the speakers at the initial hearing on Feb. 4 in Los Angeles were restaurant servers in favor of the changes, claiming they lose tips when the employers force them to take a meal period in the middle of a shift or serving a table. Osmer notes, however, that Outback Steakhouse, which is currently embroiled in litigation for allegations that it failed to provide the required breaks, bussed those servers to the hearing.

"Big companies such as Outback and Wal-Mart are not only involved in lawsuits involving mass employee dissatisfaction, but are major contributors to the governor's campaign," Osmer says. "Add it up and it's hard not to think they are looking for a way out."

While pro-labor groups firmly contend the revisions provide more leeway for corporations rather than more flexibility for workers, the Schwarzenegger administration insists the changes are an advantage to both business and workers.

"It's important to understand that this law does not take away an employees' right to a lunch break," Flagg says. "It allows employees to eat when they are hungry, rather than when the government tells them to eat."

Simmons believes there is a strong probability the state will adopt the law--perhaps with some changes--but admits some dissatisfied party will most likely challenge the ruling in a higher court no matter what happens at the hearings.

"Why should the employer say when you have to take time off?" he says. "Why should the government protect you from yourself? It's a restrictive law that protects employees even from themselves!"

Staff Writer

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