SAN FRANCISCO – The 1st Appellate District, Division of the California Court of Appeal has ruled that a temporary staffing agency doesn’t need to police its client’s meal periods.

In a March 21 ruling, Judge Jim Humes upheld a 2016 ruling not to impose liability on staffing agency Aerotek for alleged meal period violations of its client Bay Bread, a food production facility in south San Francisco. Humes relied on the California Supreme Court’s ruling in Brinker Restaurant Corp. v. Superior Court, concluding that Aerotek satisfied its duty to provide employees at Bay Bread with meal periods despite never seeing the employees take them. He rejected plaintiff Norma Serrano’s claim that the agency had a duty to investigate or police whether its client was providing proper meal periods.

Humes also confirmed that an employer’s mere knowledge that meal breaks aren’t being taken doesn’t establish liability. According to the court order, both companies entered into a service agreement where Aerotek would supply Bay Bread with temporary employees who the production facility would “control, manage and supervise.” In their agreement, Bay Bread also agreed to “comply with applicable with federal, state and local laws.”

Aerotek later hired Serrano to work at Bay Bread’s facility. Serrano worked at Bay Bread during two different periods and before each period began she received a copy of Aerotek’s employment handbook, which contained a lawful meal period policy. The policy stated that workers would be provided with an uninterrupted 30-minute, off-duty meal break that must begin no later than the end of the employee’s fifth hour of work, the opinion states.

According to the opinion, Aerotek personnel told her about its meal period policy at Bay Bread on two separate occasions during a joint orientation meeting and she signed an acknowledgement saying she agreed to comply with Aerotek’s policies and immediately report any violations. Serrano’s time records indicated missed meal periods, but Aerotek’s on-site account manager stated Serrano never complained to him about missing meal breaks, the opinion states.

In January 2014, Serrano brought a class action under Labor Code sections 226.7 and 512 to recover damages and penalties claiming Aerotek and Bay Bread failed to provide employees with proper meal periods.

She admitted she was “unaware of any actions Aerotek affirmatively took to 'prevent' [her] from taking meal breaks within the first five hour[s] of work, but believe[d] Aerotek failed to ensure that Bay Bread implemented appropriate meal break policies,” the opinion states.

Bay Bread considered the Aerotek policy irrelevant because it provides breaks in compliance with California law. In affirming the lower court’s ruling, Humes held that Aerotek satisfied its duty by promulgating a complaint meal policy, educating employees about it and requiring employees to report violations.




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