This morning the California Supreme Court issued its long awaited decision in Brinker Restaurant Corp. v. Superior Court of San Diego. The Supreme Court held that so long as meal periods are properly provided, employers need not ensure an employee performs no work during the meal period.
The Opinion and Issues
The opinion addresses questions about the interpretation of California statutes and regulations (specifically Labor Code Sections 226.7 and 512) pertaining to meal and rest breaks. Among the numerous issues raised by the case are those relating to: class certification; whether employers must insure employees actually take meal periods; whether employers must provide a second meal period in a single work day if five hours have passed since the previous meal period; and whether employers must compensate employees for work employees performed off the clock.
In 2004, a group of current and former non-exempt restaurant employees initiated a class action lawsuit against Brinker, one of the country's largest restaurant companies. The suit alleged claims including that Brinker had: (1) failed to provide non-exempt employees with mandated 10-minute rest breaks for every four hours worked; (2) failed to provide 30-minute meal periods as required by law; and (3) required employees to perform work “off the clock” when they were “punched out” for meal periods. The plaintiffs sought to recover unpaid overtime wages based upon these alleged rest break, meal period, and off the clock violations. Brinker defended the lawsuit by providing evidence that it had a written policy requiring that employees be provided with and take meal and rest breaks. Brinker argued that it was in compliance with the Labor Code when it provided employees with an opportunity to take meal periods and rest breaks—even if the employees chose to forego them.
The Court held that employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on. The Court also held that the Wage Order language stating that rest breaks must fall in the middle of work periods “insofar as practicable” was significant, indicating that employers may deviate from “that preferred course” where practical considerations render it infeasible. The court did not opine as to what considerations might be “legally sufficient” to allow rest breaks at times other than in the middle of work periods.
The Court held that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” The Court referenced the language in Wage Order 5, applicable to restaurant employees, but present in each wage order, stating that the Order creates an obligation on the part of an employer to provide a meal period. The Court explained, an employer satisfied this obligation if it: (1) relieves its employees of all duty, (2) relinquishes control over their activities, (3) permits a reasonable opportunity to take an uninterrupted 30-minute break, and (4) does not impede or discourage them from taking the meal period. Importantly, the Court specifically held an “employer is not obligated to police meal periods and ensure no work thereafter is performed.” As a result, an employee who elects to perform work during their properly “provided” meal period does not create liability for his/her employer.
With regard to timing of the meal period, the Court held that absent a waiver, a first meal period is required no later than the end of an employee’s fifth hour of work, with a second meal period no later than the end of an employee’s 10th hour of work. No additional time restrictions apply to meal periods.
The Court spent a great amount of time on technical legal issues related to the propriety of the trial court’s granting of class certification. The Court held the trial court did not abuse its discretion in concluding that common questions predominated, justifying the various classes. In reaching this conclusion, the Court relied upon Brinker’s uniform rest break policy applicable to all non-exempt employees, and did not find credence in Brinker’s argument that individual issues of rest break waivers created a lack of commonality. The Court wrote, “No issue of waiver ever arises for a rest break that was required by law but never authorized [by the employer]; if a break is not authorized, an employee has no opportunity to decline to take it.” Brinker argued that prior to class certification, the court should have resolved threshold legal disputes, but the Court noted that resolving such disputes places defendants in jeopardy of a series of class actions, discrediting that argument.
The Court remanded to the trial court the issue of class certification of the meal period class given its clarification of the required timing of meal periods, which by definition limits the prior proposed class.
The Court held that the Court of Appeal properly vacated certification of the class of employees who allegedly worked off the clock, were pressured to do so, and were not paid for time worked. The Court’s opinion was based on Brinker’s uniform policy that prohibited off the clock work. However, the Supreme Court noted that the employees carried the burden as to this claim which was contingent upon individualized proof that Brinker knew or should have known the off the clock work was occurring and therefore was not amenable to proceed as a class.
Employers around the state are likely breathing a collective sigh of relief. As implementation of this opinion occurs, we expect additional guidance from the DLSE. At this time, it is essential that employers modify their current meal period policies and practices, and training of non-exempt employees and supervisors is highly recommended to ensure compliance with the Supreme Court’s four-factor test which enables employers to provide rather than ensure meal periods. Further, employers are advised to evaluate and, if appropriate, revise their rest break policies and practices to conform to the Court’s direction regarding timing and number of rest breaks.
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.