Robert Tollen Quoted in Daily Labor Report

The February 6, 2006 issue of the Daily Labor Report published an article entitled “California Meal Break Conflict Likely Headed to State High Court as Lower Courts Split.”  The article quoted Robert Tollen and made reference to a case involving firm client Kenneth Cole.

In December, 2005, an appeals court panel in San Francisco found a Kenneth Cole store manager could not get damages for his lost meal breaks because a court could only impose a “penalty” if the claim was filed within one year of the alleged violation and the manager’s claim was too late.

In January, 2006, an appeals court in San Diego ruled in favor of a class of employees who were denied breaks, and found that the meal break law provided “wages” as damages, which extends both the statute of limitations for the claims and the total amount of money class members can receive.  Seven days later, an appeals court in Los Angeles ruled that damages were a “penalty,” and applied a shorter statute of limitations and damages period.

The disparate rulings could easily be seen as just hairsplitting by different courts, but attorneys in the state say millions of dollars is at stake.  Robert Tollen said the issue is clear, even though his colleagues in the plaintiffs’ bar may disagree.

“I honestly do think it’s pretty clear, but they’re fighting a battle to go after three or four years of penalties instead of just one year, so they’re making their argument,” Robert said.  “At this point, we’ve got 16 judges who think it’s a penalty and two who think it’s compensation.”

It is likely that the decision will be resolved by the California Supreme Court.  “There’s only one decision that says this is compensation, and the Supreme Court can weigh in by either reversing that decision or depublishing it, and leaving all the other decisions that say it’s a penalty outstanding,” Robert said.  “And if the Supreme Court does that, then the employers in this state will have a very high level of certainty,” he added.