Bob Tollen Quoted in San Francisco Daily Journal
"Man's suit Over Missed Lunches A High-Stakes, High-Court Case"

The article "Man's suit Over Missed Lunches A High-Stakes, High-Court Case" in the March 7, 2007 issue of the San Francisco Daily Journal reports: "In what experts say is the hottest labor law case of the year, the California Supreme Court today will revisit the ground rules governing lawsuits over missed lunches. Hearing oral arguments in a case against a clothing retail chain, the justices will decide how much back pay workers can sue employers for and how quickly they must file their suits. The case turns on the question of whether a demand for payment of a missed meal or rest break qualifies as a "penalty" or as "compensation." The stakes are high because the statute of limitations for a penalty is one year, while a worker who sues for compensation can seek up to three years of back pay. Attorneys for the retailer, Kenneth Cole, said the difference in classification will potentially make employers liable for millions of dollars more in back pay and damages. Typical plaintiffs include low-wage earners, such as farm workers, restaurant staff and landscapers, who often don't know their rights or are hesitant to complain for fear of losing their jobs. Today's closely watched case reached the high court on the heels of a $115 million punitive damages award against Wal-Mart, the world's largest company, for denying its employees meal breaks."

"California Labor Code Section 512 requires employers to provide a meal break of at least 30 minutes if employees work at least six hours. But employers do not have to comply with the requirement if an employee is considered exempt from the law based on job classification. In Wednesday's case, a store manager who worked for Kenneth Cole in San Francisco for three years filed a complaint with the California Labor Commission demanding $28,742 and additional penalties for unpaid overtime. He argued that he was misclassified because his duties were more like a line worker than a supervisor. Kenneth Cole countered that the employee, John Paul Murphy, did not qualify for the overtime because he fell under exempt status as a store manager. The Labor Commission concluded in 2003 that because Murphy spent 90 percent of his time performing the same duties as sales associates, he was not an exempt employee. The commission ordered Kenneth Cole to pay Murphy more than $37,000 in unpaid over-time, interest and "waiting time" penalties. That's when the retailer took the case to trial court. In 2004, San Francisco Superior Court Judge Anne Bouliane entered a $64,000 judgment against the retailer in addition to $62,000 in attorney fees. On appeal, a unanimous panel of the 1st District Court of Appeal in San Francisco concluded that Murphy was not an exempt employee, but agreed with Kenneth Cole that he only qualified for one year of back pay. The high court will also consider Wednesday whether workers may raise new claims at the trial level if they fail to first raise them with the Labor Commission. Robert W. Tollen of Seyfarth Shaw in San Francisco represents Kenneth Cole in the case. He said Murphy's initial complaint to the Labor Commission only sought back pay for overtime and didn't even ask for compensation for missed meal and rest breaks. By waiting until he filed a lawsuit to make an issue of the meal breaks, Tollen said, Murphy forfeited his rights because of the statute of limitations."