Out to Lunch

Labor law and lunchtime lawsuits in California

Last December, on a crusade against excess regulation, California Governor Arnold Schwarzenegger proposed an emergency change to the rules on lunch breaks for hourly workers. The resulting outcry underlines the difficulty of regulating fairness for both workers and employers, especially in the post-union service economy.

Current California law, enacted just a few years ago, calls for a mandatory half-hour lunchtime for each six-hour shift, to be taken by the fifth hour on the job; federal labor law requires no such breaks. More onerous for businesses is that workers are owed an extra hour of wages for each day without a rest break. This classification of breaks as wages gives workers a three-year statute of limitations to sue.

Since October 2000, when the law was strengthened, the state has levied nearly $4 million in penalties for over 2000 violations of the right to rest. Big chains like Blockbuster, Olive Garden and Best Buy have all been targeted. The California Restaurant Association charges some of these suits are frivolous, involving breaks that started five minutes late. Now moving through state courts are a class action against Wal-Mart that involves nearly 200,000 workers and suits against the Cheesecake Factory chain, which may eventually claim as much as $10 to $20 million in back pay and penalties.

Under the proposed rule change, the lunch break can take place at the end, not the start, of the fifth hour of work. Employers would be obligated simply to post and notify employees of their right to a break, not necessarily to provide it. And most importantly, violations of the rule are classed as penalties, not missed wages, giving workers less than a year to bring claims and potentially limiting damages.

A predictable outcry from California's powerful Labor Federation and its United Food and Commercial Workers, the grocery union, quickly forced the Governator to move the proposal from fast-track "emergency" status to the regular process, including public hearings this spring in several cities. There, some workers' advocates were surprised to hear that many waiters, bartenders, and clerks welcomed the new flexibility as a chance to collect more tips or work a shorter shift.

"Workers deserve the right to make the decision as to when to take lunch rather than having that decision made by bureaucrats in Sacramento," one worker wrote to the Sacramento Bee. "Some employees will prefer to waive the meal period and leave work early or, like myself, a medical condition (diabetes) determines when I should eat, not an arbitrary regulation."

Even workers who oppose the rule change admit the law alone is a less than perfect way of protecting workers. Young Workers United is a Bay Area association of mostly restaurant workers who helped launch one of the Cheesecake Factory lawsuits and actively oppose the new lunch break rule. One of its members, a 23-year-old waiter at the San Francisco Cheesecake Factory, said that at the aptly named Factory, "mandatory breaks" at first were ignored. Later, waiters were required to come in an hour before their shift to fold napkins for a half-hour, sit on their hands, and then work a full six hours. This chicanery did nothing to relieve waiters who really needed a minute off their feet or a smoke break during the dinner rush.

This waiter asked not to be named because he is a long-term employee in good standing at the Cheesecake Factory, where his managers have no idea that he's involved in getting other workers to join the lawsuit for back wages. As a young man who has been working full time and overtime for five years to put himself through college at San Francisco State, he might often prefer to snag the extra tips by staying on his feet straight through his shift. But that's not the point, he says: "We want what's owed to us. It's a matter of dignity and pride."

Curiously, the issue underlying the regulatory change is one that both workers' advocates and businesses can agree on: Class-action lawsuits are a cumbersome and expensive blunt instrument for ensuring that workers are treated fairly and feel satisfied. They are signs of a more and more desperate labor movement, as the political climate for organized labor chills and the old détente between businesses and "business unions" erodes.

Old-school unions have fallen especially flat in the service sector, as they fail to make their case to young, part-time, and short-term workers who see themselves as passing through on the way to something better. New workers' rights groups like Young Workers United, which is not formally a part of any union, are trying to independently rebuild that sense of dignity and pride on the job, a valuable workers' benefit that can't be legislated.