Kletter Law Firm San Francisco San Mateo

SAN FRANCISCO (January 2008)-- A California state judge Jan. 4 certified a class action by drivers for White Cap Industries Inc. who allege they have been denied meal and rest breaks in violation of state law (Castro v. White Indus. Inc., Cal. Super. Ct., No. CGC-05-446144, 1/4/08).

Some 345 drivers who deliver construction goods to contractors on routes that vary daily alleged that the timekeeping system automatically deducts 30 minutes a day from any driver who does not punch out for lunch, according to the lawsuit filed in the California Superior Court in San Francisco.

White Cap argues workers are responsible for reporting any inaccuracies regarding timekeeping by filing punch adjustment requests. But plaintiffs said drivers did not know about the lunch breaks or the adjustments, which are not mentioned in employee handbooks; supervisors exerted pressure on workers to complete deliveries; and that they lost breaks because they were required to remain on-call during all rest and break periods via walkie-talkies. The plaintiffs said it was not until after the lawsuit was filed that White Cap provided a clear written policy on meal and rest breaks.

Judge Robert Dondero certified the class of current and former drivers employed at any California branch of White Cap from Jan. 25, 2002, to resolution of the lawsuit. Costa Mesa, Calif.-based White Cap operates 30 branches in the state. It was owned by Home Depot, but was sold last August to HD Supply, a wholesale distribution company in Atlanta.

Class Allegations
The lawsuit alleges violations of California Labor Code Sections 226.7 and 5122 requiring meal and rest breaks and California wage orders; failure to pay overtime in violation of Sections 510 and 1994; failure to pay wages for all hours worked in violation of Sections 201, 202, and 203; failure to provide itemized wage statements in violation of Section 226.7; and unfair business practices in violation of California Business & Professions Code Section 17200.

The record indicates “that at least some White Cap managers pressured employees into lunch breaks, and that many employees did not take lunch,” Dondero said.

The factors in the case are similar to those in two recent California appellate decisions involving truck drivers, Cicairos v. Summit Logistics Inc. (2005) 133 Cal.App.4th 949, 961-964, which held that the burden of proof in a wage and hour case was on the defendant employer to prove that it provided proper employee rest breaks, and Zavala v. Scott Brothers Dairy Inc. (200 DLR A-7, 10/17/06).

“I think as you see more and more of these wage and hour cases, you're going to see them in every industry,” said plaintiffs' co-counsel Sharon R. Vinick, with the Vinick Law Firm in San Francisco.

While the law requiring breaks is clear, “the big issue going forward is the meaning of the Labor Code section that talks about providing a meal break. That is an area being hotly litigated and will continue to be hotly litigated,” Vinick said Jan. 10.

In the Cicairos case, the California Court of Appeal concluded that “it's not enough to make them available, particularly if you tell an employee, 'take your lunch anytime you want’?” but require the worker to fulfill all management's expectations, Vinick said.

Vinick noted that by July 2006, after the lawsuit was going forward, the company distributed policies about meal and rest breaks. A White Cap spokeswoman Jan. 11 declined to comment on the pending litigation.

Plaintiffs are represented by Sharon Vinick, with the Vinick Law Firm in San Francisco, and Cary Kletter, with the Law Offices of Cary S. Kletter, San Francisco. White Cap is represented by Lynne Hermle of Orrick Herrington & Sutcliffe in Menlo Park, Calif.

Copyright 2008, The Bureau of National Affairs, Inc., Washington, D.C.

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