PUBLICATIONS

Court of Appeal Clarifies Meal and Rest Break Requirements

8/13/2008

A California Court of Appeal recently issued a long-awaited meal and rest break decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum). Brinker, a restaurant chain, appealed the trial court's granting of class certification on employees' meal period, rest break, and off-the-clock claims. In reversing the trial court's order, the Brinker court resolved several key issues concerning California's meal and rest break requirements. Specifically, the court held the following:

1. Meal Breaks: The term "provide," as used in Labor Code § 512, means that employers must only make meal periods available, but need not ensure that employees take them. Employers may not impede, discourage, or dissuade employees from taking meal periods. The Brinker court also held that an employer's practice of providing employees with a meal period early in their workday (e.g., after one hour of work) did not violate California law, even though the employee might work in excess of five consecutive hours without an additional meal period. For hourly employees who work more than five hours per day, employers must make available a 30-minute meal period unless (a) the employee works a total "work period per day" that is six hours or less, and (b) both the employee and the employer agree by mutual consent to waive the meal period.

2. Rest Breaks: The Brinker court held that an employer must only "authorize or permit" employees to take rest breaks, but need not ensure that employees actually take the rest breaks. Again, employers may not impede, discourage or dissuade employees from taking rest breaks. In addition, the Brinker court held that employers need only authorize and permit rest periods every four hours worked, or major fraction thereof, and the rest breaks need not, where impracticable, be in the middle of each work period. The Brinker court interpreted the phrase "major fraction thereof" to mean the time period between 3½ hours and 4 hours, and not to mean that rest period must be offered for each 3½ hour period, as the Labor Commissioner's office had interpreted the law.

3. Off-The-Clock Claims: Employers cannot coerce, require, or compel employees to work off-the-clock, but the Brinker court held that employers may only be held liable for employees working off-the-clock if the employer knew or should have known that the employees were doing so.

The court also held that the meal and rest break claims were not amenable to class action treatment. The court reasoned that these claims involve more individual issues than classwide issues, because an employer must only make available rest and meal breaks and not "ensure" that they are taken. The off-the-clock claims were similarly not amenable to class treatment because individual issues predominated, including whether Brinker forced employees to work off-the-clock and whether Brinker knew or should have known employees were working off-the-clock.

Although many employers will view the Brinker decision as a positive and sensible development, other courts have reached different results. These conflicting court decisions create uncertainty for employers and may lead the California Supreme Court to resolve these different interpretations, if the plaintiffs in Brinker appeal the decision, as is expected. Regardless of whether the reasoning in Brinker prevails, compliance with meal and rest break laws is still necessary. Attention to the following will assist employers in minimizing meal and rest break exposure:

1. Include the proper meal and rest break policies in employee handbooks and obtain employee signatures confirming that employees are aware of the policies.

2. Train supervisors regarding meal and rest break policies, and discipline supervisors who instruct or discourage employees to skip meal and rest breaks.

3. Review time sheets to ensure meal breaks are being recorded accurately, including the times of meal breaks.

4. If a meal break is not reported, follow up with employees to determine if the meal break was taken but not recorded. If it was not taken, inquire why.

5. Post the appropriate Wage Order regarding meal and rest breaks in lunch and/or break rooms to ensure employees are aware of the policies.

Our employment law attorneys are available to discuss these developments in further detail and to advise employers about best practices to comply with these laws.