The Uncertainty of Meal and Rest Period Obligations for Employers Continues

To intensify the uncertainty of compliance with meal and rest break rules in California, the California Division of Labor Standards Enforcement (“DLSE”) has withdrawn its advice memo to its staff that meal and rest periods need only be provided, and not ensured, in light of the California Supreme Court's recent decision to grant review in Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008). Adding more confusion to the mix, another California Court of Appeals issued a ruling on meal and rest period requirements that follows the holding in Brinker Restaurant Corp. – making the current split among California Courts of Appeals 2-1 in favor of a requirement that employers need only provide their employees with meal and rest periods, not ensure that these breaks are taken.

As many employers are aware, on July 22, 2008, a California Court of Appeals issued a long-awaited decision in Brinker Restaurant Corp., wherein the court interpreted California law with respect to the provision of meal and rest periods, the timing thereof, as well as the number of meal periods due employees based upon the number of hours worked. Specifically, the court held that employers must provide meal and rest periods by making them available, but need not ensure they are taken. It also held that employers are not required to provide a meal period for every five consecutive hours worked so long as they otherwise comply with the mandates of California Labor Code section 512. Finally, the court held that employers need only authorize and permit rest periods every four hours or fraction thereof and those rest periods need not, where impracticable, be in the middle of each work period.

On October 22, 2008, the California Supreme Court granted review of the court's decision in Brinker Restaurant Corp. And, one day later, the DLSE withdrew its memorandum advising staff to follow the Brinker Restaurant Corp. court's interpretation of California 's meal and rest period requirements. Even though the July 22, 2008 DLSE memorandum is no longer valid, the new memorandum indicates that the DLSE finds compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken. In doing so, it cautions that employers may not require employees to work through their meal periods. Additionally, the memorandum advises that an employer does not satisfy its obligations if its policies or practices prevent or discourage employees from taking their meal periods. In contrast to Brinker Restaurant Corp., the DLSE also takes the position that the first meal period provided by an employer must commence prior to the end of the fifth hour of work, unless otherwise expressly permitted by the applicable wage order; however, it agrees with Brinker Restaurant Corp. that employers are not required to provide meal periods every five hours (i.e., no “rolling five” hour rule). Finally, it confirms that employers have a duty to record their employees' meal periods and shall pay an employee one additional hour of pay at the employee's regular rate of compensation for each work day that a meal period was not provided.

On October 28, 2008, another California Court of Appeal issued a decision in Brinkley v. Public Storage, Inc., Docket No. B200513, that falls directly in line with the decision in Brinker Restaurant Corp. and even takes the argument one step further. In Brinkley, the court considered whether California law requires employers to provide meal periods within the first five hours of a shift, whether employers must ensure that employees actually take meal breaks, and whether employers must ensure that employees take rest periods. The court answered all of these questions in the negative. In its analysis, the court granted summary judgment to the employer based on its showing of a written policy providing for meal periods, awareness of the policy by the plaintiff-employee and its managers, evidence of having reprimanded employees for not taking meal periods, and having advised the plaintiff-employee and others at a meeting that they were required to take meal and rest breaks. In contrast, the plaintiff-employee produced no evidence that he or other non-exempt employees were denied an opportunity to take these breaks. Notably, this court also held that an employer cannot be liable for misstatements on paystubs unless it knowingly and intentionally makes such misstatements and an employee suffers injury as a result.

By now you are likely asking yourself, what does this decision mean for employers? In all practicality, it means nothing. Until the California Supreme Court definitively decides these issues, the state of the law in this area will remain uncertain as Brinkley and other decisions of the California Courts of Appeal are not required to be followed by other courts in this state. Although the DLSE's new memorandum of October 23, 2008 provides some guidance on what is expected of employers in order to comply with California 's meal and rest period requirements, it also adds to the confusion in this area because the DLSE refuses to issue permanent guidelines until the California Supreme Court issues a decision in Brinker Restaurant Corp. As for how long that will take, it is difficult to predict. The California Supreme Court has granted the employees in Brinker Restaurant Corp. a 60-day extension of time to file their opening brief, which will likely extend all briefing into at least March 2009.

Based upon the current uncertainty of the law in the area of meal and rest period requirements due to these recent developments, employers should continue to record employee meal periods on time cards and document employee rest breaks to verify that they were provided until the California Supreme Court provides definitive guidance. In addition, employers should pay employees who are not provided with a meal and rest period an additional one hour of pay at the regular rate for each day that an employee is not provided with a meal or rest break. It is also good practice to make sure all employees are aware they should take meal and rest breaks in accordance with California law and that they will be subject to discipline for failing to do so.