Richard J. Simmons

For Simmons, a veteran practitioner known as a guru of California wage and hour law, it was a painful moment. Appearing for a second round of oral argument in a critical health care industry case, he ran afoul of 4th District Associate Justice David A. Thompson. Simmons, who lectures frequently, habitually holds two pens in his hand to make multicolored notes. Thompson accused him of using the pens to point in his direction and ordered Simmons to stop it. "I have had tremendous success in the law," Simmons said. "But that was just a terrible day for me. It would have been humorous if it had been anyone else but me."

The justice's unexpected interruption with a complaint about the demeanor of an advocate — Simmons called Thompson's comment "borderline rude and ungracious" — presaged the panel's reversal in a case that threatened to upend a long-standing rule that let hospital workers on 12-hour shifts waive one mandatory meal break to avoid 30 minutes of unpaid work. The panel overturned a favorable trial court outcome based, Simmons said, on an unreasonable interpretation of the California Industrial Welfare Commission's authority and denied the workers the waiver right. Gerard v. Orange Coast Memorial Medical Center, G04039 (4th DCA, opinion filed Feb. 10, 2015)

"That was precisely what the health care unions, hospitals and employees sought to avoid," Simmons said. "It was a potentially devastating ruling. People started filing class actions across the state. The industry was having a collective conniption fit. There were powerful human consequences; nurses were flipping out. The only people who would have benefited were plaintiffs' lawyers. It was a tragically flawed opinion."

Simmons immediately sought and were granted review of the appellate court's decision by the state Supreme Court. That case has been fully briefed and awaits an oral argument date. Simmons and his team also worked with both the California Hospital Association and, unusually, with health care unions to draft and support legislation, SB 327, that repudiated the appellate panel's decision. The legislation was passed unanimously by both the state Senate and Assembly and was enacted as an emergency measure in October 2015.

"Oh, the drama," Simmons said. "We didn't want to wait for the Supreme Court. In my 30-year plus career I have never been on the side of organized labor, but we had a common goal here." The legislation has already resulted in the dismissal and abandonment of multiple class actions that had been premised on Gerard, Simmons said. "It has thus already saved tens of millions of dollars in the health care industry and provided health care employees flexibility to structure their work schedules."

— John Roemer