Khorrami, Pollard & Abir is rapidly growing, fast becoming one of the nation's largest plaintiff's litigation law firm. KP&A's commitment to growth, and client satisfaction, has not left litigation technology in its wake. To the contrary, the firm is blazing a trail, setting high standards for plaintiff's practices by staying on top of the best litigation support technology available to the legal industry today.

Litigation support technology offers the law firm cutting edge software tools that assist with the organization of discovery documents, and client data. This technology maintains the continuity of case data in such a manner that it allows attorneys to spend more time developing strategies that lead to successful outcomes for their clients. These new litigation support tools also provide a higher level of security over sensitive client case information, thereby leaving little room for premature exposure.

These software programs, unavailable in their current form several years ago, support the new Federal Rules of Civil Procedure (FRCP) eDiscovery, and Electronic Data Discovery (EDD) guidelines. The programs protect the firm forensically, by avoiding cross contamination of electronic documents produced by opposing parties. These systems provide KP&A with the best level of security against document tampering available at this time.

Khorrami, Pollard & Abir believes that it is important to stay abreast of new technology for the sake of their clients. The firm only expects the best, and is committed to maintaining only the highest quality of standards for themselves, and their clients.

An overarching political theme of this year has been the movement behind domestic change. Fueled by the message of hope, through the inspiring and uplifting slogan of "Yes We Can!", Americans have rallied together to break the heavy chains of conformity. Earlier this year - in May, the Media briefly reported on the six million children in Ethiopia who were at risk of malnutrition and serious dehydration. Media outlets momentarily covered the deplorable starvation of Ethiopian children, as devastating pictures of three year old children weighing less than 10 pounds were canvassed on the front page of the likes of CNN. com. As citizens of a global community, we are all responsible. Without having to see heart wrenching photographs in order to proactively get involved in a long term solution that helps eliminate one of the many pains that plague the lives of children throughout Africa, it is time that we not only say, "Yes We Can!", but more importantly, "Yes We Did."

The solution is as simple as providing a source of clean water, which would provide a fundamental source of relief for these children. The lack of accessibility to water, yet alone sanitary water, is the root of many devastating diseases that causes a child to die every 15 seconds worldwide. In rural areas of Sub-Saharan Africa, woman and children (predominately girls) are forced to walk an average of five (5) miles a day in order to carry approximately forty (40) pounds of (possibly unsanitary) water back to their homes. This arduous journey typically keeps girls out of school, as the task of fetching water consumes their days. Solutions to these dire situations do exist, and with the desire to obtain a tangible result that can easily be quantified, the words of "Yes We Can" quickly turn into "Yes, We Did." One fantastic solution is the PlayPump water system.

The PlayPump system is comprised of a merry go round that is connected to a water pump and a storage tank. While children effortlessly and enjoyably spin around on the merry-go-round, clean water is pumped from underground into a 660 gallon tank that stands 22 feet above the ground. Basically, children at play become a limitless energy source. The PlayPump system can pump up to 370 gallons of clean water per hour with less effort than manually operated pumps, and efficiently recycles unused water by diverting the excess water back into the borehole. A simple tap allows access to the clean water. The icing on the cake is that the pump also features billboards on the storage tank. Two of the four billboards on each PlayPump system are required to have social and health messages that promote awareness for HIV/AIDS and other issues that plague sub-Saharan Africa. The PlayPump system is manufactured by a company called Outdoor Fabrications & Steelworks and is installed and maintained by Roundabout Outdoor, both South African companies, the latter with a social mission that handles the advertising for the other two sides of the PlayPump.

The cost of a PlayPump water system, including all equipment and additional costs for geohydro surveying, water testing, training, and transport is $14,000. For $14,000 the number of humans who die every day from preventable diseases related to unsafe water and inadequate sanitation can be reduced exponentially. More than 1,000 PlayPump systems have already been installed all over Africa, resulting in clean water for millions of people. To get more information on PlayPump water systems please visit: www.playpumps.org or view a video at: http://www.youtube.com/user/playpumps . More importantly, be proactive and contact me directly at gkeshavarz@kpalawyers.com about how to be a part of a solution by helping Khorrami, Pollard & Abir, LLP's efforts to build PlayPump water systems in Africa.

On July 22, 2008, the Court of Appeal (Fourth Appellate District, Division One) injected a significant measure of chaos into the world of wage & hour class actions. In Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008), the Court of Appeal (Fourth Appellate District, Division One) held that:

1. while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;
2. employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
3. employers are not required to provide a meal period for every five consecutive hours worked;
4. while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and
5. while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so."

(Slip op., at p. 4.) The Brinker Court also concluded "that because the rest and meal breaks need only be 'made available' and not 'ensured,' individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment." Similarly, the Brinker Court concluded that "off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock."

The Brinker opinion departed significantly from existing constructions of law and policy in California. For example, while the Brinker Court recognized that "mandatory rest and meal breaks have 'have long been viewed as part of the remedial worker protection framework' designed to protect workers' health and safety. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy).)," the Court of Appeal nevertheless concluded that employers are not obligated to ensure that meal breaks are taken. And while Brinker paid lip service to Murphy, it completely ignored Gentry v. Superior Court (Circuit City Stores, Inc.) 42 Cal.4th 443 (2007), in which the California Supreme Court firmly articulated California's employee-protective policies and the superiority of class actions for resolving wage & hour disputes.

A major concern raised by the Brinker opinion is that it followed a troubling line of recent decisions by federal district courts (e.g., White v. Starbucks Corp., 497 F.Supp.2d 1080 (N.D. Cal. Jul. 2, 2007) and Brown v. Federal Express Corp., 2008 WL 906517 (C.D. Cal. Feb. 26, 2008)) apparently determined to see an end to wage & hour class actions, instead of opinions of California courts (e.g., Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005) and Bufil v. Dollar Financial Group, Inc., 162 Cal.App.4th 1193 (2008)) that consistently implemented the policy obligations described by the California Supreme Court in Murphy and Gentry. In Cicairos, the Third Appellate District held that "employers have 'an affirmative obligation to ensure that workers are actually relieved of all duty'" for their meal periods. (133 Cal.App.4th at 962-63.) Brinker expressly refused to follow Cicairos.

To justify its decision, Brinker rested heavily upon policy analyses supplied by federal court decisions. For example, Brinker approvingly cited Brown in declaring that if employers were obligated to ensure meal breaks were taken, that obligation would create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws. And relying on the district court White decision, Brinker assumed that making employers "ensurers" of meal breaks would be impossible to implement for significant sectors of the mercantile industry (and other industries) in which large employers may have hundreds or thousands of employees working multiple shifts. In essence, Brinker determined that (1) employer's can't comply with the law as it has been applied for years in California, and (2) the only operating incentive of any consequence is an incentive that will drive employees to avoid their meal break to create an employer liability of one hour of pay. Unfortunately, Brinker failed to offer a complete analysis.

First, employers of all sizes control employees in a variety of ways every day. Since S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 " '[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired....' " Employers habitually set hours of work for their employees. Under the analysis adopted by Brinker, a large employer should find it impossible to control when its employees arrive and depart each day, which is demonstrably false. An employee that is punctual and performs well will receive favorable reviews, earn raises or qualify for promotions. A habitually tardy employee may ultimately face termination. For most employees, these combined incentives control their behavior. An employer's failure to modify a recalcitrant employee's behavior is the fault of the employer, not evidence of the impossibility of employee control.

Because Brinker accepts flawed analyses from other Courts, it misses the flaws in its own arguments. The potential loss of employment is a larger financial incentive on an employee than an additional hour of pay. Rational employees, working for an employer that enforces its meal break policy, will respond to the larger financial incentive of job retention. Similarly, an employer faces an economic incentive to affirmatively relieve all employees of work duties for 30 minutes during shifts of sufficient length. The employer must then determine whether enforcement of policy is the preferred course to paying meal break premiums. In addition, the employer faces the additional, strong incentive to avoid meal break litigation by employees seeking to recover meal break premium payments. These incentives on employers and employees seem sufficient to overwhelm the singular incentive analysis adopted by Brinker.

Brinker is also disturbing for the manner in which it chose to interpret statutory language, ignoring the Supreme Court's rules for interpretation and relying almost exclusively on one dictionary to determine meaning. Brinker held that "meal periods need only be made available, not ensured," because "[t]he term 'provide' is defined in Merriam-Webster's Collegiate Dictionary … as 'to supply or make available.'" Slip op. 42 (emphasis original). Labor Code section 226.7(b) uses the word "provide" in different ways, depending on the context, and refers to more detailed provisions in the Wage Orders. Turning to the applicable Wage Orders, as section 226.7, subdivisions (a) and (b) both instruct, the Brinker Court should have noted that different language is used to describe employers' obligations. For meal periods, paragraph 11(A) uses mandatory language: "No employer shall employ any person for a work period of more than five (5) hours without a meal period …." (8 Cal. Code Regs. §11050(11(A)).) For rest periods, paragraph 12(A) uses discretionary language: "Every employer shall authorize and permit all employees to take rest periods …." (Id., §11050(12(A)).) But Brinker did not discuss section 226.7 or the Wage Orders, much less explain the differing language. Instead, Brinker focused on the word "provide" in section 512(a) and the definition it extracted from one dictionary. Ultimately, the length of the Brinker opinion does little to offset the many failings in its analysis of wage & hour issues.

A Petition for Review of Brinker is now pending before the California Supreme Court (filed August 29, 2008), and review of Brinker is urgently needed. Meal period compliance issues are currently pending before at least two Courts of Appeal: Savaglio v. Wal-Mart Stores, Inc., Nos. A116458, A116459, A116886 (First Appellate District, Division Four) and Brinkley v. Public Storage, Inc., No. B200513 (Second Appellate District, Division Three). During this year alone, the meal break compliance issues have been raised in the Ninth Circuit in at least four petitions for permission to appeal under Federal Rule of Civil Procedure 23(f). Two of those petitions are currently pending. California and federal trial courts continue to face proposed class actions where meal break issues are central to the certification question. Employers and employees must know the extent of their respective obligations and rights.

For more information about Brinker, and the extensive online commentary about the decision, visit the author's weblog, www.thecomplexlitigator.com (The Complex Litigator).