Michael Kun Quoted in Article, “Post-Brinker Workers Attack Calif. Employers on New Fronts”Law360 April 9, 2013
Michael Kun, a Member of the Firm in the Labor and Employment practice and national Co-Chairperson of the firm's Wage and Hour, Individual and Collective Actions practice group, in the Los Angeles office, was quoted in an article titled "Post-Brinker Workers Attack Calif. Employers on New Fronts." (Read the full version — subscription required.)
Following is an excerpt:
A year after the California Supreme Court's landmark Brinker v. Superior Court decision holding that companies don't need to police employees to ensure they stop working during meal breaks, state courts are certifying fewer wage-and-hour class actions for missed meal periods, prompting the plaintiffs bar to shift strategy by attacking rest period policies and adding claims under the state's Private Attorney General Act, lawyers say. ?...
Since it absolves companies of responsibility for making sure workers actually take meal breaks, the Brinker ruling suggests meal period claims will involve highly individualized inquiries for many employers, according to Michael Kun, national co-chair of Epstein Becker & Green PC's wage-and-hour practice.
"If you have to address why employees didn't take meal periods to determine liability, certifying a class certainly becomes more difficult than ever, because it would almost by its nature be an individualized inquiry for every day for every person," he said. ?...
"What's always made it difficult for plaintiffs to get rest period claims certified is that employers either haven't had written policies or have had policies that are very broad," Kun said. "Unlike meal period claims, where the meal period is off duty, which can help plaintiffs determine if there's a violation, rest periods are on duty, and employers generally don't have records showing when employees took rest periods."