Although the Ninth Circuit recently issued a PAGA (Private Attorneys General Act) ruling that found favorably for an employer in a meal and rest break case, the state Legislature didn’t advance a bill that sought to amend the statute.
In Davidson v. O’Reilly Auto Enterprises, LLC, the appellate panel upheld the district court’s ruling that a class action claim could not be brought based on flawed policy language that was not illegal.
“Put another way, the mere existence of a facially defective written policy — without any evidence that it was implemented in an unlawful manner — does not constitute ‘[s]ignificant proof,’ id.at 354, that a class of employees were subject to an unlawful practice,” Justice Sandra S. Ikuta wrote in the Aug. 3 opinion.
The federal appellate decision supports what should be a common-sense conclusion, Tom Manzo, founder and president of the California Business and Industrial Alliance (CABIA), told the Northern California Record by email.
“There needs to be proof of actual harm to employees to certify a class action – not just merely a technical violation based on a poorly worded meal/rest break policy,” Manzo sad. “It's a net positive for California, in that it prevents baseless class action claims from being filed. Going forward, CABIA would like to see more common sense from the courts and the legislature--starting with a PAGA moratorium as the state recovers from the COVID crisis."
Since California declared a statewide emergency in early March, more than 3,400 PAGA notices have been issued, including some to companies that are shut down because of COVID-19, Manzo said.
Many of the notices allege meal and rest break violations.
“That is one of the biggest, mainly because it is the easiest; flexible hours or companies who do not require employees to punch in or out for lunch is why this is a big target,” Manzo said. “The army of private attorneys general can accuse a company of anything without proof, demand records, and then look for something like any technical violation.”
Yet in the state legislative session just concluded late last month, lawmakers did not act on SB 729, sponsored by Sen. Anthony Portantino, D-Pasadena, which sought to curb PAGA enforcement on meal and rest breaks for people who are working from home.
In the Aug. 31 Assembly analysis, a coalition of opposed labor groups, including the California Labor Federation, stated, "This bill would significantly weaken the basic right to meal and rest breaks for employees working remotely. During this COVID-19 pandemic, when employers are finding new and innovative ways to monitor and control a remote workforce, we should be ensuring that those basic workplace rights are protected, not weakened.”
“That is an absurd statement,” Manzo said. “Who would miss their breaks and lunches while working from home? Cal Fed has too much power in this state, and legislators need to quit backing down on anything they oppose.”