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1 California Supreme Court California Supreme Court Brinker Decision: What It Means to Hospitals A il 24 2012 April 24, 2012 CHA Webinar Welcome and Program Welcome and Program Overview Liz Mekjavich California Hospital Association
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Page 1: California Supreme CourtCalifornia Supreme Court Brinker ... · California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals A il 24 2012April 24,

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California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals

A il 24 2012April 24, 2012

CHA Webinar

Welcome and ProgramWelcome and Program Overview

Liz Mekjavich

California Hospital Associationp

Page 2: California Supreme CourtCalifornia Supreme Court Brinker ... · California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals A il 24 2012April 24,

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California Supreme CourtCalifornia Supreme Court Brinker Decision: What It Means to Hospitals

G il Bl h d S iGail Blanchard-Saiger

California Hospital Association

Polling Question

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Agenda

B i f hi t f l d t i d l Brief history of meal and rest period rules

Summary of the Brinker decision

Operational impact

Recommendations

Questions

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Questions

Brief History

Meal Periods

1940 – 1999

Rule contained in Wage Orders

Special health care rules adopted in 1993

“Hours worked”

W i f d l i d

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Waiver of second meal period

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Brief History

Meal Periods

2000 2000

AB 60/ Labor Code 512

IWC amends Wage Order 5

Employees in the health care industry can waive one of their two meal periods

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“Penalty” adopted

Exclusion for public hospitals

2001

Labor Code 226.7 – “penalty” codified

Brief History

Rest Periods

1940 – present

Rule contained in Wage Orders

IWC adopts “penalty” in 2000

Labor Code 226.7 – “penalty” codified

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Brief History

Meal and Rest Period Litigation

Kenneth Cole Decision (2007)

226.7 “penalty” is a wage

Four-year statute of limitations

Attorneys’ fees and costs recoverable

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Explosion in class action litigation

Brinker Case Summary

Restaurant industry

Interprets Labor Code 512 &Wage Order 5

Substantive issues

Rest periods

Off-the-clock work

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Meal periods

Class certification issues

Clarification of existing law

“Retroactive” effect

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Brinker Case Summary

Rest period claim

Employees not authorized and permitted sufficient number of breaks

Timing

Off-the-clock work claim

Employees worked off the clock during their meal

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p y gperiods or managers altered meal break records

Lunch break claim

“Provide”

“Early lunch”

Brinker Case Summary

Rest Period Claim

Policy stated “If I work over 3.5 hours during my shift, I understand that I am eligible for one, ten minute rest break for each four hours that I work”

Did not include the phrase “major fraction thereof”

S b t ti l id f if t b k li

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Substantial evidence of a uniform rest break policy authorizing breaks only for each full four hours worked

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Brinker Case Summary

Rest Period Decision

Facially invalid policy

Class certification appropriate

Number of rest periods

3½ – 6 hours – 10 minutes rest

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6+ – 10 hours – 20 minutes rest

10+ – 14 hours – 30 minutes rest

And so on …

Brinker Case Summary

Rest Period Decision

Timing: “Insofar as practicable” in the middle of each work period

Employers must make a good faith effort, “but may deviate from that preferred course where practical considerations render it

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where practical considerations render it infeasible”

Court declines to give an opinion on what considerations would be legally sufficient

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Brinker Case Summary

Off-the-Clock Work Claim

Policy stated “It is your responsibility to clock in and clock out for every shift …working off the clock for any reason is considered a violation of company policy …”

Employees clocked out for lunch and continued

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Employees clocked out for lunch and continued working or managers altered time records to reflect a meal period when none was taken

Brinker Case Summary

Off-the-Clock Work Decision

Facially valid policy

Rebuttable presumption that no work is performed when employee is clocked out

Employees have the burden to provide substantial id f if id li

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evidence of a uniform, company-wide policy or practice of off-the-clock work

Only anecdotal evidence was submitted

Class certification inappropriate

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Brinker Case Summary

Meal Period Claim

Employer must ensure that employees perform no work during the meal period

Employer practice to have employees take an “early” lunch and then work more than 5 consecutive hours was unlawful

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consecutive hours was unlawful

Brinker Case Summary

Meal Period Decision

Employer’s obligation to “provide” a meal period

Relieve the employee of all duty

Relinquish control

Free to leave the premises

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Permit a reasonable opportunity to take an uninterrupted 30 minutes

Do not impede or discourage employees from taking their meal period

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Brinker Case Summary

Meal Period Decision

What does this mean? (pg. 36)

It is an affirmative duty

“What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the fully range of approaches that

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proceeding delineate the fully range of approaches that in each instance might be sufficient to satisfy the law”

“The employer is not obligated to police meal breaks and ensure that no work thereafter is performed.”

Brinker Case Summary

Meal Period Decision

If work continues during the meal period

Employer is liable for straight time pay if it knew or should have known the employee was working

May result in overtime if working through the meal period means that employee works more than 8

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period means that employee works more than 8 hours

But employer is not liable for premium pay

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Brinker Case Summary

Meal Period Decision

Timing

Employees working 5+ hours up to 10 hours

Meal period must be provided within the first 5 hours of work

6-hour waiver

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6 hour waiver

Employees working 10+ hours

Second meal period must be provided within the first 10 hours of work

Waivers

Brinker Case Summary

Meal Period Decision

Class certification

Rested on an erronous legal conclusion — the rolling 5 approach

Class was over-inclusive

R d t th t i l t t i i li ht f th

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Remand to the trial court to review in light of the court’s substantive ruling

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Brinker Case Summary

Special Health Care Rules

Waiver

Allows employees in the health care industry to waiver either meal period

Does not include a 12-hour cap

F t l th i

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Free to leave the premises

Wage Order 5 health care exception

Court does not specifically address

Brinker Case Summary

Class Certification Decision

Language indicating support of class action certification (pg. 26)

Deference to the trial court’s decision

The concurring decision

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Only two justices joined, including the justice writing the majority opinion

Impact is unclear

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Operational Impact

Rest Periods

Timing

In surgery

Patient care considerations

How many must be authorized and permitted?

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Combining

What type of relief is necessary?

Documentation

Operational Impact

Off-the-Clock Work

Need to be diligent

Knew or should have known

Insist on accurate time records

Discipline employees who violate hospital policy

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Consider impact of electronic health records, etc.

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Operational Impact

Meal Periods

Timing

8-hour shifts

10-hour shifts — incremental overtime

12-hour shifts

i h i

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Without waivers

With waivers

15-hour shift???

Operational Impact

Meal Periods

What type of relief is necessary

Must be based on actual hours worked not scheduled hours

Flexing off

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Overtime

Callback

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Operational Impact

Meal Periods

Uninterrupted

Cell phones, etc.

Monitors in the break room

How to demonstrate a meal period was id d

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provided

Patient care

Non-patient care

Recommendations

Active management of meal and rest breaks Get a multi-disciplinary team in place

HR Finance and Payroll IT/HRIS Nursing, other patient care and non-patient

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care departments Legal

Evaluate current operations for meal and rest period compliance

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Recommendations

Make decisions on areas of risk:

Whether to:

Pay “penalties” automatically; if so when

Place burden on employee to claim; if so, how

Flags for automated time and attendance systems

Adopt some other policy

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p p y

Whether to use waivers and on-duty meal period agreements; if so, when

Whether to require employees to start the meal period within the first 5 hours

Recommendations

Determine how to demonstrate meal periods were “provided”

Schedules

Staffing sheets

Floaters

Determine how to demonstrate rest periods

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Determine how to demonstrate rest periods were authorized and permitted

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Recommendations

Review and revise off-the-clock work policy

Including a mechanism to report concerns

Review and update meal and rest period policies, forms, waivers, etc.

Implement attestation/certification

M l i d id d

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Meal periods were provided

Rest periods were authorized and permitted

Recommendations

Periodically audit time records and premium payments

Lack of premium payments tell a story

Train managers and employees on hospital policy and processes

At time of hire

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At time of hire

At time of promotion to manager

Annually

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Thank you

Gail [email protected](916) 552-7620

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Putting the Brinker Decision into Practice

Natasha Milatovich, MBA, MHRMWhite Memorial Medical Center

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Thank you

Natasha [email protected](323) 268-5000

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Questions

Online questions:Online questions:Type your question in the Q & A box, hit enter

Phone questions:To ask a question hit 14To ask a question hit 14 To remove a question hit 13

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2012 Publications

California Hospital Survey Manual (New publication)

California Hospital Compliance Manual

Consent Law

Principles of Consent and Advance Directives

Minors and Health Care LawMinors and Health Care Law(Available May 2012)

California Health Information Privacy Manual(Available Summer 2012)

More info at www.calhospital.org/publications39

Upcoming Programs

Consent Law A il 26 I i M 8 S R M 9 S tApril 26, Irvine; May 8, San Ramon; May 9, Sacramento; May 22, Universal City

California Supreme Court Brinker Decision: What it Means to Hospitals, Web SeminarApril 24, 10:30 a.m. – Noon, PT

California Congressional Action ProgramMay 6 9 Washington DCMay 6 – 9, Washington, DC

Health Information Privacy, Web SeminarMay 16, 10 a.m. – Noon, PT

Hospital ReimbursementJune 5, Sacramento; June 20, Glendale; June 21, Irvine

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Thank You and Evaluation

Thank o for participating in toda ’sThank you for participating in today’s briefing. An online evaluation will be sent to you shortly.

For education questions, contact Liz Mekjavich at (916) 552-7500 or [email protected].

Partners:California Hospital AssociationCalifornia Hospital Patient Safety OrganizationHospital Council of Northern and Central CaliforniaHospital Association of Southern CaliforniaHospital Association of San Diego and Imperial Counties