Employment Law Update

July 2008

Meal Periods: Employers Must Only "Make Meal Periods Available," Not Ensure They Are Taken

In Brinker Rest. Corp. v. Superior Court, D049331 (July 22, 2008), the Fourth Appellate District for the California Court of Appeals answered the question employers have been asking since the California Supreme Court's 2007 ruling in Murphy v. Kenneth Cole Productions, Inc.: Whether employers are required to affirmatively ensure meal periods are taken or merely make them available to employees. To the cheers of employers everywhere, the Court held that “while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken.”

Background and Holding

Several current and former employees filed a class action lawsuit against their employer, Brinker Restaurant Corp. (“Brinker”), alleging Brinker failed to provide meal and rest periods, or failed to provide them at the appropriate times, and required employees to work “off the clock” during meal periods. The trial court granted class certification, but failed to address whether an employer is obligated to “ensure” or “provide” meal periods. In reviewing this decision the Court of Appeals disagreed and directed the trial court to vacate its order granting class certification based, in part, on its conclusion that employers need only “make meal periods available,” not ensure they are actually taken. Because this distinction would require a trial court to make individual inquiries as to the reasons why each employee failed to clock out for meal periods, or failed to clock out at the correct time for a full 30 minutes, the Court of Appeals concluded the case was not amenable to class certification.

The Brinker Rest. Corp. Court distinguished the Third Appellate District's prior holding in Cicairos v. Summit Logistics (2005) 133 Cal. App. 4th 949, which held an employer's obligation to provide its employees with adequate meal periods was not satisfied “by assuming that the meal periods were taken.” Instead, the Cicairos Court held, “employers have an affirmative obligation to ensure that workers are actually relieved of all duty.” Citing federal court cases that had also distinguished the Cicairos holding, the Brinker Rest. Corp. Court concluded the two cases were not inconsistent. In Cicairos , the employer “pressured” employees to perform more work, making it harder to stop for meal periods. The employer knew employees were eating while working but did nothing to address or mend the situation. Under those facts, the employer did not “provide” employees with meal periods.

The Brinker Rest. Corp. Court did not limit its decision to the “provide” versus “ensure” debate. The Court also reached the following conclusions:

  • Employers need only provide (not ensure) rest periods, but cannot impede, discourage or dissuade employees from taking rest periods
  • Rest periods must be provided (not ensured) every four hours or major fraction thereof, but need not, where impracticable, be in the middle of each work period; only when an employee is scheduled for a shift of more than three and one-half hours, but less than four hours, is the employee entitled to a rest period before the four-hour mark (employees are not entitled to a rest period if they work less than three and one-half hours in a day)
  • Employers must provide a meal period if an employee works more than five hours per day and a second meal period if an employee works more than 10 hours per day, but need not provide a meal period “for every five consecutive hours worked” (no “rolling five-hour” rule)
  • 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

In response to the Fourth Appellate District's decision in Brinker Rest. Corp., Governor Arnold Schwarzenegger issued the following statement:

"We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today's decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

What Should Employers Know?

As it stands, Brinker Rest. Corp. v. Superior Court significantly lessens the burden on employers who, until now, faced an uphill battle trying to prove compliance with meal and rest period laws. Under the Court's holding, employers must only make meal and rest periods available to employees, e.g., not impede or otherwise discourage meal and rest periods. They need not monitor employees' every move to ensure those meal periods are actually taken. This is a considerable victory for employers who face lawsuits filed by employees who either failed to clock out for meal periods or voluntarily chose not to take them, leaving the burden on the employer for failing to actually ensure compliance or pay the one-hour premium under Labor Code section 226.7.

Given the interest in this area of law, the California Supreme Court may grant review. If that occurs, the Brinker Rest. Corp. decision will be de-published and no longer citable by employers defending similar claims. A decision by the Supreme Court could take years. (It took approximately 14 months to issue an opinion in Murphy v. Kenneth Cole Productions, Inc.) In the meantime, however, until the Supreme Court agrees to grant review the Court of Appeals' decision, employers can celebrate this victory.

 

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.