It’s taken nearly 10 years, but I now completely understand many lawyers’ dissatisfaction with our profession.2 Forget the lawyer jokes.3 Forget the grueling hours. Forget the conduct of opposing counsel or the lack of time judges seem to have to prepare for cases. Even forget the complete absence of gratitude from many clients whose lives, careers, businesses or assets have been saved. All that stuff is just par for the course. The real “lawyer killer” is the sure idiocy of the subject matter of most disputes.
Sure: Lawyers have a storied tradition of resolving important legal and social issues. I harken back to the early years of our country, when attorneys debated the issues that would shape this nation’s future. Issues such as which branch of government had the power to determine whether a statute was constitutional (Marburry v. Madison) or whether separate could really ever be equal (Brown v. Board of Education).4 Even recently, in our very own People’s Republic of California, lawyers were central to resolving the issue of whether the state can deny “marriage” benefits to same-sex couples. (In re Marriage Cases).5
Unfortunately, such lofty and high-fallutin’ subject matter rarely occupies more than a tiny portion of the careers of an even tinier portion of lawyers. Many get stuck dealing with the day-to-day bickering over who gets to keep the IKEA-bought coffee table at the end of a three-day marriage, or whether the car accident victim with undetectable soft tissue damage should get paid more for pain and suffering than the average American earns in a year.
In the world of employment law, subject matter idiocy has apparently triumphed over important legal and social issues. The last decade has seen scores of fights over the question of who’s responsible for making sure employees eat lunch. That’s right; read it again. Our court system is crammed full of cases by employees who assert that, under California law, they can’t simply be told they can go take lunch. They assert that the law is (or should be) that an employer must force them to go eat and, in the absence of force-feeding employees for a full 30 minutes, the company should be penalized by having to pay additional “wages,” “penalties” and “attorney’s fees.” (See “Luck of the Irish,”, Simply Legal, May 2007).
Now, I’m not talking about employees who were actually told they could not eat lunch. This is about employees who had every opportunity to go eat lunch, were told they could go eat lunch, who knew that the law lets them take a lunch—but either chose not to, forgot to or felt they were too busy to take a lunch. And, I kid you not, those employees have sued in masses! And companies throughout the state have paid millions as a result.6
That portion of the idiocy may finally be coming to an end. A California appellate court, responding to yet another class action over meal and rest periods, finally determined that employees who decide for themselves not to eat lunch can’t complain of retroactive hunger pains. The court instead ruled that California employers are only obligated to “provide” meal periods—not ensure employees take them.
Accordingly, while you can’t intentionally stop your employees from taking a lunch, interrupt them during the meal period or otherwise dissuade them from taking the meal period, if you provide them with notice of the right to take the period and give them an actual opportunity to take it, the employee suffers the consequences of choosing not to. In other words, some personal responsibility appears to have been restored upon employee choices (at least with respect to meal periods.)7 So, if it’s true, in the immortal words of Weird Al, that lunch is “all they really wa-a-a-a-a-a-ant,” then this decision lets employees answer for themselves that ever-important Shakespearean question: “To eat or not to eat.” The resulting tab, for now anyway, may not be billed to employers. 8
1 This title is a parody of Weird Al Yankovick’s “Girls Just Wanna Have Lunch,” itself a parody of Cyndi Lauper’s “Girls Just Wanna Have Fun.” The fact I knew either of those titles, their respective artists, or the proper spelling of their names will surely be evidence in a future commitment proceeding.
2 I’m an admittedly slow learner—my parents argue about which side of the family it comes from.
3 Some of which are funny. But if you take them as a serious reflection upon the profession, hire a comic the next time you’re arrested!
4 If you think I’m crazy enough to put a cynical footnote (even if I had thought of one) about that subject matter, you should be committed instead of me.
5 See Fn 4.
6 What do you think that’s done for consumer prices?
7 The full opinion of the case has much broader implications for employers thanjust the meal period issue. It addresses rest period obligations, the timing of when meal periods must be “provided,” and when employers can be liable for off the clock work by employees. You can find the full opinion at www.courtinfo.ca.gov/opinions/documents/D049331A.PDF
8 For the moment, anyway. The legislature or the California Supreme Court are perfectly capable of restoring complete idiocy to the law.
