Robert Tollen Quoted in Daily Labor Report
"Wage & Hour : California Justices Hear Arguments in Case : Questioning If Extra Wage Is Penalty or Pay"

The article "Wage & Hour : California Justices Hear Arguments in Case : Questioning If Extra Wage Is Penalty or Pay" in the March 9, 2007 Daily Labor Report notes "The California Supreme Court heard oral arguments March 7 on whether a state Labor Code provision requiring employers to pay an hour's wage for missed meal or rest periods is a penalty to the employer or compensation to the worker (Murphy v. Kenneth Cole Prods. Inc., Cal., No S140380, oral arguments 3/7/07). If the court agrees with plaintiffs, labor unions, and workers' rights groups, the one-hour pay requirement is compensation and thus has a three-year statute of limitations. If justices side with Kenneth Cole Productions Inc., the California Employment Law Council, the Chamber of Commerce, and businesses and business groups, the one-hour's pay provision is a penalty and thus workers only have a year to file a complaint. The real difference is the money, according to Seyfarth Shaw's Robert W. Tollen who is representing Kenneth Cole. He told BNA after the hearing that the ruling's impact is "billions" of dollars in California. Labor Code Section 512 requires that employers provide a 30-minute meal break for each five hours worked. California Industrial Welfare Commission wage orders require a 10-minute break for each four hours worked. Under Section 226.7, workers receive one hour of pay for each missed meal break. The California Supreme Court has granted review to at least five law suits challenging the pay versus penalty issue but deferred briefing pending outcome in the Kenneth Cole case. In addition, dozens of more class actions and individual cases are working through the trial and appeals courts. Tollen argued that the Legislature adopted the penalty the state Industrial Welfare Commission already was using. Other provisions in neighboring sections of the Labor Code all reference penalties, which Tollen said "says to me that even though the Legislature uses the word 'wages,' they intended a penalty." Further, Tollen said, the IWC and the Legislature already provide a speedy process for addressing workers' concerns about breaks, so the three-year provision is unnecessary, he said. The question, Tollen said, is what is the injury that workers suffer when they already receive pay for working that time instead of 30 minutes' unpaid break. The payment "is not designed to analyze injury or extent of injury," he said.