Meal & Rest Break Waivers: The Subtext.

There is text and there is subtext.  We know that there are job “rules” and then there are job practices.  The rules are the official policies and form the text.  The actual practices are those “implicit” rules, often contradicting the policies. 

Do you own a body part or cell after it is removed by medical procedure?

This quote basically explains why I love the practice of law: 

[Moore v. Regents of the University of California (1990) 51 Cal3d Page 120, at 135]

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“No court, however, has ever in a reported decision imposed conversion liability for the use of human cells in medical research.^*fn15 While that fact does not end our inquiry, it raises a flag of caution. (See fn. 16.) In effect, what Moore is asking us to do is to impose a tort duty on scientists to investigate the consensual pedigree of each human cell sample used in research.^*fn16 To impose such a duty, which would affect medical research of importance to all of society, implicates policy concerns far removed from the traditional, two-party ownership disputes in which the law of  conversion arose.^*fn17 Invoking a tort theory originally used to determine whether the loser or the finder of a horse had the better title, Moore claims ownership of the results of socially important medical research, including the genetic code for chemicals that regulate the functions of every human being's immune system.^*fn18”

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By the way, the Supreme Court declined to recognize a continuing property interest in one’s own body parts once they are removed by medical procedures.  Thus, the Court did not extend the “Conversion” tort to cover those parts, stating that the person undergoing the procedure lost any continuing property interest on removal.  Instead, the liability, if any, the Court concluded, would arise out of a researcher’s or physician’s duty to disclose before the removal what the intended use of the body part was to be. 

© 2010 FXP

 "If the pink slip doesn't fit, get redressed!"
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On the Brinker of Disaster: Give Employees a Break, Will Ya?

Oh, that economics, law, and ethics would perfectly align.  In such a world, employers would not only know the law, but they would follow it scrupulously.  They would not allow the emergence of a corporate structure that encouraged the skipping of rest breaks.  Such enlightened employers would not allow overworked employees to skip or delay their lunches.  These same workers, in an economic climate of layoffs and increased work loads, would not sulk in fear at the thought of insisting on their breaks, nor would supervisors mentally mark for layoff those "slaggard" employees who took breaks. 

Soon, an uncitable decision now on appeal to the California Supreme Court [Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25] will result in a final decision on whether an employer must not only have and follow a rest break and meal break policy in accordance with law, but must also actively police the employee population to assure the breaks are actually taken.  In effect, pre-Brinker, employers were charged with nearly "strict liability" if an employee showed breaks were not taken.  The likely presumption behind a "strict liability" standard is that the employer "permitted" and even encouraged employees to avoid their breaks [or risk adverse performance evaluations or ranking for layoff].

I predict the California Supreme Court will affirm Brinker's rule of lax enforcement.  Courts have a fascination with this term "reasonable" as if human conduct was not only "reasonable" but well intentioned.  In truth, a "reasonable" entrepreneur in a competitive environment will seek greater productivity by various kinds of tactics to encourage employees to work through break times and lunch breaks.  One very simple method is to load everyone down with more work because layoffs have reduced the available resources.  Fear of layoffs itself will be enough to induce both employers and employees to "overlook" the break rules.  Will the California Supreme Court see this larger economic
reality of the workplace?  Is it relevant legally?  If the information is relevant, how do they even have access to that information?  Their "world" is limited to the formal record on appeal.  This limitation illustrates why courts are so limited and ill suited (pardon the pun) to decide matters of social policy. 

Even so, one truth is paramount:  employers are constantly enforcing the rules of the workplace.  The best level of enforcement is not the courts, but at the "front lines" where disputes first arise.  In this situation, a rule that placed the "strict liability" on employers to enforce a break and meal time policy would have two good effects:  1) it would present a bright line rule that would make outcomes clear if the policy was violated and 2) it would reduce the amount of litigation because courts would not be presented with the thorny issue of whether an employer was "reasonable" in tracking a rest break and meal time policy. 

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

A Class Act: Women Take on Wal-Mart by the Thousands.

So what do hundreds of thousands of women have in common at Wal-Mart?  They are class action plaintiffs proceeding in a case for gender discrimination against the retail behemoth.  The U.S. Supreme Court has accepted Wal-Mart's appeal to hear the issue of whether the class action certification was properly granted.  Among other matters, there must be an economy of disposition of the class claims because the claimants have factual and legal issues in common.  The conservative position is that they have nothing in common but their gender and that they work for Wal-Mart.  The liberal position is that they were all treated with a common systemic practice of limiting promotion and pay opportunities because they were women.  This case will decide the future of massive future class actions, and whether they will have an impact on how companies operate.  Will this one be scored for David or Goliath?  We should find out in mid 2011.  New York Times Article

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link