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September 29, 2014
California Supreme Court’s Brinker Decision Furnishes Much-Needed Clarification on Meal and Rest Period Requirements
On April 12, 2012, the California Supreme Court released its much-anticipated decision in Brinker Restaurant Corp. v. Superior Court (Hohnbaum). Meal and rest period cases have played a major role in fueling the explosion in wage and hour class action litigation. The Court’s decision furnishes direct guidance which, at long last, clarifies a number of critical issues regarding the required scope and timing of meal and rest periods under California law.
In addition to its clarification of meal and rest period requirements, the Brinker decision also provides important direction regarding the circumstances under which “off-the-clock” and other common wage and hour claims may be litigated as class actions.
Meal and Rest Period Requirements
A. Employer’s Duty to Provide Meal Periods
In Brinker, the Court resolved the long-running debate as to whether employers are obligated to “ensure” that employees take meal periods required by law. The Court held that employers meet their obligation by providing meal periods during which the employee is relieved of all duty for an uninterrupted 30 minute period. Employers need not ensure that employees in fact take their meal breaks, nor need they monitor employees to ensure that they do no work during the meal period.
The Court also furnished some much-needed clarification regarding the timing of meal periods.The plaintiffs had urged the Court to interpret the statute (California Labor Code Section 512) and the regulations (Wage Orders promulgated by California’s Industrial Welfare Commission) to require employers to furnish meal periods on a “rolling” basis, so that a new five hour period would commence upon completion of the employee’s first meal period, whenever it occurred.Under this approach, for example, an employee who works from 9:00 to 12:00, takes a meal period, and then works from 12:30 to 5:30 would be entitled to a second meal period. The Court disagreed with plaintiffs, and in so doing furnished a simple, clear summary of meal period timing requirements:
- A first meal period must be provided no later than the end of an employee’s fifth hour of work;
- A second meal period must be provided no later than the end of an employee’s tenth hour of work.
- The first meal period may be waived by mutual consent of the employee and the employer, if the employee works no more than six hours on the day in question.
- The second meal period may be waived if 1) the first meal period was not waived; and 2) the employee works no more than 12 hours on the day in question.
California employers should confirm that their meal period policies comply with the foregoing requirements. Maintaining a formal policy is not, however, enough. Employers may incur liability if they impede or discourage employees from taking the meal periods mandated by law. As the Court noted, these laws prevent employers from coercing employees against taking required meal breaks, or “creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”
B. Employer’s Duty to Provide Rest Periods
The Brinker opinion also furnishes some clear rules for employers to follow in furnishing rest periods.
The Court began its analysis with the language of the Wage Orders:
“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3½) hours.”
This provision requires that employees be given 10 minutes rest time for each four hours of work “or major fraction thereof.” A “major fraction” means a fraction greater than one half.Thus, the Court noted, in calculating the amount of rest time that must be furnished in a given day, the employer should take the number of work hours divided by four (rounded down if the fractional part is half or less than half and up if it is more) times 10 minutes.
Under this approach, employees must receive 10 minutes of rest time for shifts lasting up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, 30 minutes for shifts lasting more than 10 hours, up to 14 hours, and so on. As stated in the Wage Orders, no rest time need be furnished where the total daily work time is less than three and a half hours.
The Court did not discuss at length the issue of how rest periods should be timed. It rejected plaintiffs’ contention that employers must furnish a rest period before any meal period is taken.As the Court observed, the only constraint on timing set out in the Wage Orders is a requirement that rest breaks fall in the middle of work periods “insofar as practicable.” Thus, employers must make a good faith effort to furnish rest breaks in the middle of the work period, but they retain flexibility with regard to timing, where required by practical constraints.
The Court noted that Brinker’s policy might be legally deficient, in view of the requirements summarized above. Brinker’s policy stated that employees who worked over three and a halfhours during their shift were eligible for “one ten minute rest break for each four hours” worked.The Court noted that plaintiffs might be able to prove violations on a class-wide basis, if, for example, they could show that the policy failed to authorize and permit a second rest break for employees working shifts longer than six — but shorter than eight — hours.
Class Certification Issues
A. Certification of Off-the-Clock Claims
The trial court certified a subclass encompassing claims by Brinker employees seeking recovery for work they had allegedly performed off-the-clock, during meal periods. The Court held this was error. The Court’s ruling will make it more difficult for employees to certify such classes in the future, unless they are able to show that common questions predominate.
In concluding there was an absence of common questions justifying class treatment, the Court contrasted plaintiffs’ off-the-clock claims with their rest period claims, noting that the latter dealt with a uniform policy that itself was alleged to be legally deficient. The off-the-clock claims, as presented by plaintiffs, required proof that, despite their time records, plaintiffs were performing compensable work, and that Brinker knew or should have known that off-the-clock work was occurring. Plaintiffs had not presented evidence of any systematic company policy to pressure employees to work off the clock. Absent such proof, plaintiffs were left with providing proof on an individualized basis, showing which employees worked off the clock, how long they worked, and whether Brinker knew or should have known of their work. The need for such individualized evidence rendered the off-the-clock claims inappropriate for class treatment.
B. Certification of Meal Period Claims
The trial court also certified a subclass of employees alleging denial of meal periods and seeking payment of the one hour “premium” due under California Labor Code Section 226.7 for each such denial. The subclass certified by the trial court included all employees who “worked one or more work periods in excess of 5 consecutive hours” without receiving a meal period. The Court observed that the subclass was overbroad, in that it included employees claiming entitlement to meal periods under the now-discredited “rolling five hour” requirement. Consequently, the Court sent the case back to the trial court to reconsider certification, in light of the Brinkeropinion’s “clarification” of meal period timing requirements.
In sending the meal period certification issue back to the trial court, the Supreme Court did not reach the question of whether common issues predominated with regard to those claims.Nevertheless, it is clear that under the “no duty to ensure” standard adopted in Brinker, plaintiffs will face a much stiffer challenge in identifying common issues sufficient to justify class treatment. Where the employer maintains a lawful meal period policy, plaintiffs will be faced with the burden of demonstrating that the employer systematically undermined its own policy by impeding or discouraging employees from taking their meal breaks.
Action Items for Employers
There is much to like in the Brinker decision for employers. Nevertheless, because the California Supreme Court has now clarified certain issues that had previously been subject to debate, it is important for all California employers to confirm that their existing policies and practices fully comport with the Court’s rulings regarding meal and rest periods. Failure to do so will leave the employer open to class action claims, which will increasingly be aimed at any companies whose policies are defective on their face. Further, employers should consider measures to ensure that their policies are not being undermined by supervisors or others who may be impeding employees’ ability to take meal and rest breaks pursuant to the employers’ policies. Such measures include supervisor training, periodic audits of time records and other affirmative steps designed to identify and correct situations when they arise, and ensure that no “systematic” violations occur.
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