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At hearings unfolding this week and next week at the California Labor Commissioner's Office, Sutter Health employees testified that they were not able to take meal breaks or rest breaks because of chronic understaffing in their departments at Sutter’s Capitol Pavilion Surgical Center in midtown Sacramento.
In total, about 30 employees at the Capitol Pavilion Surgery Center are requesting thousands of dollars in compensation for both meal and rest breaks that they say they were forced to miss. Registered nurse Pilar Tallent testified Monday in her hearing that, when she wrote a request for premium pay in lieu of a break, the surgical center director came to her and said: "Really? That's what you want? Really? You couldn't just eat at your desk?"
Registered nurse Kathleen Beckley, in testimony later Monday for her own case, said word got around the post-operations unit about the encounter between Tallent and the surgery center director, and the descriptions of it made her reluctant to request pay premiums for missed meals. Beckley and Tallent said it was also the custom in their department for nurses to take only one break a day.
Under California law, hourly employees must be given the option to take a 10-minute break for each four hours that they work. They must be given the opportunity to take a 30-minute lunch within the first five hours of arriving at work and to go on a 30-minute meal break within each subsequent five-hour period they work that same day.
If management cannot provide the break, workers must be given an hour of pay as compensation. It’s known as a meal premium or rest break premium.
Sutter’s outside legal counsel, Molly Kaban of San Francisco’s Hanson Bridgett, pointed out that Kronos payroll records showed that Beckley had indeed requested premium pay for several missed meal breaks and missed rest breaks. Kaban entered those Kronos documents into evidence, along with payroll records showing the same such premium requests for two other plaintiffs at Monday’s hearings, endoscopy technician Manuel Tezza and endoscopy nurse Ursula Smith.
After Kaban questioned them about the entries, Smith said she guessed she must have made the entries but could not remember doing so. When Sutter employees submit their payroll records, Kaban told Smith and other plaintiffs, they are attesting that they are true and correct. Each plaintiff said they were aware of that.
In testimony for Sutter, human resources business manager Michael Gains said that employees had two ways to request meal break premiums. They could write requests in a Kronos notebook in each department, he said, and a manager or payroll specialist would review that information and, if they approved it, then enter it in Kronos, or the employees could go into Kronos and enter it themselves.
Kaban also provided each employee and the labor commissioner with a copy of the document each had signed during orientation, explaining meal and rest break and a waiver they had signed related to the meal break. The waiver stated in part: “This will certify that at times the nature of the employee’s work prevents the employee from being relieved of all duties during the employee’s meal period. As a result on those occasions, the employee voluntarily wishes to waive the duty-free meal period provided by law, and instead work an on-duty meal period when the nature of work prevents the employee from taking a duty-free meal period. The employee will not be paid for these on-duty meal periods.”
Smith, Beckley and Tallent said they had signed the waiver and papers related to meal breaks when they were hired but had forgotten the contents. Beckley and Smith testified that they had worked many late-night shifts where no relief was made available for meal or rest breaks. Smith said that, when she asked managers about it, no changes were made during her claim period.
The documents noted that employees could revoke the waiver at any time, and Tallent asked whether she could revoke her waiver now. Kaban told her she would have to handle that matter with Sutter HR.
Gains also testified that it is the surgical center director's responsibility to ensure that all employees are correctly logging their breaks, and that was why Tallent had gotten questioned about notations she made in the Kronos book.
Deputy Labor Commissioner Stephen Franck asked numerous questions of each plaintiff that will help in making decisions in each case. He spent time on rates of pay, scheduling, departmental practices around meal and rest breaks, time sheet notations and more.
He asked employees whether they felt their scheduling or pay would be adversely affected if they submitted requests for premium pay. All said no. He asked both the plaintiffs and Sutter whether staffing levels had changed since the claims were filed and, if so, how and when changes were made. Gains said some changes had been implemented as a result of a settlement with the U.S. Department of Labor. Smith and Beckley said additional nurses were put on duty to provide relief for breaks or nurses from other departments now relieved them.
In a statement emailed to The Sacramento Bee last week, Sutter Health spokesperson Nancy Turner stated: “We take all employee concerns, including wage-and-hour claims, seriously. We have reviewed and investigated these particular claims and believe these employees have been paid appropriately. We respect our employees’ rights to pursue their individual claims through the independent review of the California Labor Commissioner.”
Franck said he would not begin rendering decisions in the Sutter cases until 15 business days after the last cases are presented next week.