I was in court last week for a status conference in a wage-and-hour class action, and was talking to my opposing counsel, an active litigator in this arena. I asked him if the new California Supreme Court case rejecting the de minimis standard was going to be big business for him.
His candid response surprised me, so I thought I’d share it. He opined that it really isn’t hard to prevent class action lawsuits in California and the de minimis argument really isn’t necessary. All an employer has to do is:
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Pay per actual time punches; don’t round at all.
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Require a 45 minute or one hour meal break; don’t bother with 30 minutes.
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Provide meal breaks at the 4th hour (always way before the end of the 5th hour worked).
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Have a fully compliant rest break policy and a strict policy against working off the clock.
To his list I would add:
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Don’t schedule 6-hour shifts with a 6-hour or less meal wavier; schedule 5 hour shifts or just schedule the meal break.
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Don’t rely on-duty meal waivers.
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Update your handbooks every year, it really is cost effective in the long run.
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Train your managers not to mess things up (even inadvertently), and keep records of that training.
He said that an employer who consistently does all of these things makes taking a class action case very un-interesting for plaintiff’s attorneys like him.
Easy enough, right? Well, it sounds a little bit expensive to me, and it also might create some employee relations issues. But then again, it might be worth a try….
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