Pharmacists' rights get boost from UPS labor decision

May 15, 2011

A recent state appellate court decision in California could help pharmacists claim meal and rest breaks they are due under state labor law. The case, which involved United Parcel Service workers, affirmed workers' right to up to 2 hours of extra pay daily.

Key Points

A recent state apellate court decision in California could help pharmacists claim meal and rest breaks due them under state labor law. The case, which involved United Parcel Service workers, affirmed workers' right to up to 2 hours of extra pay daily for missed lunch or rest breaks.

"There is no question that lunch breaks and rest periods apply to pharmacists in California," said David Balter, a labor law specialist with the state's Department of Industrial Relations (DIR). "This decision supports the position that the agency has taken all along."

The case involved UPS workers who did not receive lunch breaks and rest periods for as long as a decade. The employees sued UPS, which claimed the employees were actually management and not entitled to lunch or breaks.

The State Labor Code calls for a 30-minute unpaid meal break for nonmanagerial employees after 5 hours of work as well as a 10-minute rest period every 4 hours.

UPS spokeswoman Susan Rosenberg told Drug Topics that the company is still evaluating whether to appeal the decision, issued by the Second District Court of Appeals in Los Angeles, to the state Supreme Court.

"I have heard complaints from pharmacists about not getting their breaks or lunch," said John Cronin, general counsel for the California Pharmacists Association (CPhA). "I have also heard that the problem has diminished greatly over the past few years, but there are still circumstances where people need to be a little more assertive about their rights."

Missed breaks and lunches used to be a common complaint among pharmacists, agreed chain pharmacist Mark Raus, treasurer of the Independent Pharmacists Association and a member of the union's negotiating committee. Union pharmacists were generally protected by chain-wide contracts. But nonunion pharmacists often found themselves reclassified as management by employers in order to get around requirements for lunch and rest breaks.

"You had pharmacists working an entire shift without so much as a drink of water," Raus said. "A full shift, maybe an hour or two of overtime, 300 scripts, and no meals or breaks is a surefire recipe for prescription errors. I was part of a coalition that changed that for pharmacists, nurses, and other professionals."

What is now Section 1186 of the California Labor Code went into effect about a decade ago. The section specifically includes pharmacists in orders issued by the Industrial Welfare Commission (IWC), which administers state labor law.

That means that any pharmacist who spends at least 50% of the day filling scripts or doing something other than supervising other pharmacists is entitled to lunches and breaks. If the employer balks, the pharmacist can complain to the IWC and receive an hour of additional pay for every missed lunch and another paid hour for every day in which at least one rest break was missed.

"We're professionals by training and licensure, but most of us still do shift work," Raus said. "These days, most chains with just one pharmacist on duty close the pharmacy for a half hour. The state mandate means it's no longer a competitive issue."

A CPhA labor law consultant cautioned that the California decision is binding only on trial courts in California. Pharmacist status in other states depends on local labor laws. Federal labor law regards pharmacists as professionals not entitled to overtime and many other protections under federal provisions.

How pharmacy employers might change the way they deal with pharmacists as a result of the UPS decision is not clear. Neither the National Association of Community Drug Stores nor any of the chains contacted by Drug Topics was willing to comment on the case.