by Julie Ann Giammona

A California court of appeal has recently concluded that a staffing company is not liable for its work-site co-employer’s violation of meal period violations where the staffing agency complied with the requirements of the Labor Code.

In Serrano v. Aerotek, Inc., a former employee brought a class action lawsuit against both Aerotek, the staffing agency that hired plaintiff, and Bay Bread, the worksite to which the employee was assigned, for failure to provide lawful meal periods. Plaintiff argued that because Aerotek had reviewed her time records each pay period (which records clearly indicated that some of her meal periods were taken late, and in some instances not taken at all), Aerotek should be held vicariously liable for the conduct of Bay Bread. In rejecting this argument, Serrano relied on the California Supreme Court’s decision in Brinker v. Superior Court (2012) 53 Cal.4th 1004, which concluded that the law does not impose any obligation on an employer to ensure that meal periods are actually taken. Reiterating the teaching of Brinker, the court concluded that constructive, or even actual knowledge, that an employee is not taking meal periods does not automatically mean an employer is liable where certain other conditions are met.

The Serrano Court concluded that Aerotek had met its legal obligation under the Labor Code by taking the following actions:

  1. Entering into a contract with Bay Bread obligating Bay Bread to comply with all federal and state laws, including wage and hour laws;
  2. Drafting its own meal period policy and distributing said policy to each temporary employee;
  3. Providing training to employees during orientation specifically on the meal period policy; and
  4. Instructing employees to immediately report to Aerotek any alleged violations of the meal policy.

It is essential to note that the Serrano Court’s holding is fact specific; the holding does not opine that a staffing company can never be found jointly liable for the conduct of its clients. However, Serrano is significant in that it provides a road map for all employers to follow, not just staffing agencies, when evaluating employer meal period policies. Remember that the burden is always on the employer to notify employees of its meal period policy and direct all employees to comply with said policy. We at Ferber Law welcome the opportunity to discuss the impact of the Serrano holding on your meal period policy, as well as other employment compliance issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.