Restaurant and Food Service Blog

It’s long after Election Day and the buzz is still abound of cheers and fears when it comes to anticipating what things will be like when Obama becomes our next President. There are those changes that undoubtedly will be refreshing and good, while there are those that we simply must not only be cautious of, but have a voice about when it comes to preserving a certain way of life. Many of you will agree with me that the card-check legislation is a change that falls into the latter classification.

Democrats for the most part seem to side with the President-elect that this is a good idea, but as you look across the vast majority of workers who would actually be affected and whose voices should be heard—democrat or republican—it isn’t a popular idea. I want to take this opportunity to take a brief look at the issue, the implications of its approval, and what both sides are saying.

What Is It?

For those of you who may not already be aware, the card-check legislation, also known as the “Employee Free Choice Act,” is a piece of legislation that will in essence remove the ability of employees to vote by private-ballot in elections—a current right provided to union members. The moniker donned by this bill, as you can see, is a false-front, advertising an untruth to unknowing and unwitting employees as it actually strips free choice away. By signing a card, the majority of employees can effectively elect for union representation and lose their right to vote. 

What’s the Problem?

The issues with this piece of legislation are multi-fold.

1.     Introduction of Coercion—Currently, private-ballot elections are overseen by the National Labor Relations Board, which ensures fraud-free elections without the threat of coercion. Without this protection, coercion, intimidation and peer pressure are all re-introduced.

2.     Abolition of Privacy—The basis of a union has always and should continue to come with the right to keep that association private, a right that will no longer exist with a card-check system. Unions, employers and coworkers will all be informed.

3.     Elimination of Democracy—Quite simply, the right to vote is what democracy is all about. By taking this away from the American worker, you remove a civil liberty.

4.     Problems for Employers—Companies too will be negatively affected as unions impose stringent guidelines, effecting freezing control in the workplace.

What Is Everyone Saying?

The position on the democratic side of the fence, clearly by those who are not going to be affected by the passing of such a bill, is in clear support of this movement. In fact, President-elect Obama said that card check will be “the law of the land when I’m President of the United States.” On the other side, we see as I said from the beginning, are the workers, owners and managers who will be profoundly affected by this decision. And, according to a recent poll by American Solutions, 77% of republicans, 79% of independents, and 82% of democrats are against the implications of card-check legislation. Yet, only 30% of employees are required to sign the card in order to give the union power. Clearly, more of these workers need to be educated on the implications of such a bill.

For more information on this legislation and the efforts in place to stop its enactment, visit the U.S. Chamber of Commerce at http://www.voteforbusiness.net/article.jsf?postId=897.

Brinker Restaurant v. Superior Court of San Diego County, et al.
Case No.D049331 (Cal. Sup. Ct. 7/22/08)

The One Sentence Summary: On July 22, 2008, the California Court of Appeal issued a ruling on meal breaks and rest periods that may make it easier for California employers to comply with meal and rest break requirements. Because it is likely that the case will be appealed, however, employers should be cautious in relying on the opinion until all appeals are finally concluded, which may take several years.

What They Were Fighting About:
In Brinker Restaurant v. Superior Court of San Diego County, et al., plaintiffs brought a class action complaint against Brinker Restaurants (operator of 137 restaurants in California including Chili’s, Romano’s Macaroni Grill, and Maggiano’s Little Italy) for various alleged violations of California meal and rest break requirements. In vacating the Superior Court’s order granting class certification, the Court of Appeal made several significant rulings concerning employers’ responsibility for meal periods and rest breaks:

(1) Providing Meal and Rest Breaks: The Court held that while employers cannot “impede, discourage or dissuade employees from taking” meal periods or rest breaks, employers need only provide employees the opportunity to take meal periods and rest breaks, not ensure that employees actually take them.

(2) Scheduling Meal Breaks: The Court overturned the trial court’s conclusion that the employer was required to provide meal breaks on a “rolling” five hour schedule-that is, providing a thirty minute break for each five hours worked. Because Brinker allowed its food servers to take meal breaks in the first hour of an eight hour shift (so they could work and earn tips during the busiest part of the shift), plaintiffs had argued that Brinker was required to provide a second meal period within five hours of the first meal break. The Court held that employers need provide only one meal break for employees who work between five and ten hours during a shift, regardless of when the meal period is taken. A second meal break is only required if an employee works more than ten hours.

(3) Scheduling Rest Breaks: The Court also rejected the argument that employees need to take their rest breaks in the middle of each four hour period. The Court found that Brinker did not violate the rest break requirement by allowing employees to take their meal period in the first hour of an eight hour shift and then to take their two rest breaks later in the shift.

What Brinker May Mean to You:

If this case is not overturned on appeal (which we may not know for months or even years), then employers will have more flexibility in scheduling meal periods and will not have the burden of ensuring (and proving) that employees actually take the full meal periods provided. In addition, employers will not have to pay the one hour of premium pay to employees who take an “early lunch,” a break at the wrong time, or a break of less than 30 minutes, as long as the employer provided a meal period and the employee did not work more than ten hours total.

In light of the likelihood that this case will be appealed, many recommend that employers do not make changes to meal and rest break policies without consulting legal counsel.
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