Brinker Opinion Provides Important Guidance, Leaves Questions, Regarding Meal and Rest Periods in California
On April 12, 2012, the California Supreme Court issued its long-anticipated opinion in Brinker Restaurant Corporation et al. v. Superior Court (Hornbaum) (Case No. S166350), which provides some clarification of California’s requirements for employee meal and rest periods. This decision is not only critical for pending and future wage and hour class action cases, but presents an important opportunity for California employers to review, analyze, and, if necessary, revise their meal and rest period policies.
Brinker is a putative class action brought by hourly restaurant employees against Brinker Restaurant Corporation, which owns, among others, Chili’s Grill & Bar and Maggiano’s Little Italy. The plaintiffs alleged that Brinker failed to provide meal and rest periods, or premium wages in lieu thereof, as required by California Labor Code sections 226.7 and 512 and Industrial Welfare Commission Wage Order No. 5-2001 subdivisions 11 and 12. The employees also claimed that Brinker required them to work "off the clock" during meal periods and engaged in "time shaving" by altering time reports to misreport hours worked. They sought to certify a class of approximately 60,000 current and former nonexempt employees. The Court’s opinion resolves ambiguity and conflicting authority, but also leaves unanswered questions.
MEAL PERIODS
Employers Are Required to Make Meal Periods Available but Need Not "Police" Them to Ensure That No Work Is Done
The Brinker Court resolved a split in authority regarding whether employers must not only make meal periods available, but also ensure that the employee does not work during the meal period. The Court held that, while an employer must provide meal periods in which employees are relieved of all duty, it does not need to "police" meal periods to "ensure that no work is done." Despite its favorable holding against policing meal periods, the Court warned that liability for premium pay will still attach where an employer impedes or discourages employees from taking meal periods or pressures them "to perform duties in ways that omit breaks."
In addition, an employer can still be liable for straight pay (but not premium pay) for work performed on meal breaks if the employer "knew or reasonably should have known" that the employee was working through his or her meal periods. The Court offered little guidance on these issues, stating that "what will suffice will vary from industry to industry."
Taken together, the Court’s holdings make it clear that an employer’s meal period policy should, at least, provide for meal periods that:
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relieve employees of all duty;
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relinquish control over employees’ activities;
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permit employees a reasonable opportunity to take an uninterrupted 30-minute break; and
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do not impede or discourage employees from taking meal breaks without performing any work.
It Remains Critical to Properly Record Meal Periods
In a concurring opinion, Justice Werdegar, who also drafted the Court’s unanimous opinion, reminds employers that nothing in Brinker relieves them of their obligation to record meal periods. In fact, Justice Werdegar stated that if the employer’s records show that no meal period was taken for a shift over five hours, a rebuttable presumption arises that no meal period was provided. Thus, an employer who provides meal periods, but fails to properly record them, still risks liability. For this reason, in addition to making sure meal periods are provided in accordance with Brinker’s holdings, California employers should also make sure they implement effective policies for recording meal periods.
There Are No Timing Requirements for Meal Periods Beyond Those Expressly Required by California Labor Code Section 512
The Court also settled an ambiguity that the plaintiffs argued existed regarding the timing of meal periods. The plaintiffs contended that where a second meal period is required (i.e., a shift lasting more than 10 hours), meal periods could not be spaced more than five hours apart. The Court rejected this reading of the statute, holding that, absent a waiver, section 512 requires only what it explicitly says: a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s tenth hour of work. In other words, an employer can legally provide the first meal period during the first or second hour of a shift lasting more than 10 hours, so long as a second meal period is provided prior to or at the end of the tenth hour.
The Holdings in Brinker Do Not Mean That Individual Issues in Meal Period Cases Necessarily Preclude Class Certification
In his concurrence, Justice Werdegar noted that individual questions of why a meal period was missed, such as an employer’s assertion that the meal period was waived, do not per se render meal period classes uncertifiable. This is because a waiver of a meal period is an affirmative defense that must be pled and proven by the employer, not a part of the employee’s case-in-chief. Justice Werdegar also reaffirmed that individual questions of damages based on missed meal periods are not a bar to class certification.
Thus, employers should not read Brinker as the end of class actions for alleged meal period violations; instead, it is a reminder that employers should try to limit their exposure to class action litigation by creating uniform and compliant meal period policies.
REST PERIODS
The Court reversed the Court of Appeal’s interpretation of rest period requirements, in which the trial court held that the right to a 10-minute rest period begins after three and a half hours of work, and that additional 10-minute rest periods become available every four hours thereafter. The Court reasoned that the Court of Appeal failed to consider the Wage Order’s language, which provides not only that a meal period is required per four hours of work (and starting after three and a half hours), but also that meal periods are required for any additional "major fraction" of four hours of work. In other words, it is not sufficient to simply provide rest periods every four hours starting at three and a half hours.
The Court set forth the following required schedule for rest periods:
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An employee working for three and half hours up to six hours is entitled to 10 minutes’ rest.
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A second 10 minutes’ rest is required if the shift is between six and 10 hours because there would be one rest period for the first four hours, and an additional rest period for the remaining two hours of a six-hour shift, which is a "major fraction" of four more hours of work.
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The right to a third rest period would not be triggered until hour 10 (four hours after the six hour rest period) and would suffice for a shift lasting up to 14 hours (i.e., one rest period for hours one through four, a second rest period for hours five through eight, and a third rest period at hour 10 because there would be a "major fraction" of four hours past the eighth hour, but no additional rest period until a full four hours elapses at hour 14).
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Additional rest periods would continue to be required in similar increments (i.e., a fourth rest period for shifts lasting 14-18 hours, a fifth rest period for shifts lasting 18-22 hours, etc.).
The Court also rejected the plaintiffs argument that the first rest period must be before the first meal period, but noted that the Wage Order requires that employers provide rest periods in the middle of each work period "insofar as practicable." The precise meaning of this requirement is still unclear, except that "employers must make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render [it] infeasible." Employers should exercise caution and should attempt to schedule rest periods in the middle of an employee’s shift unless it simply is not possible to do so. Similarly, employers should try to schedule the first rest period before the first meal period where possible.
The Court also held that class certification was proper because the plaintiffs alleged (and Brinker admitted) that Brinker had a policy to allow one 10-minute rest period for every four hours of work after three and half hours, which means that violations would occur on a class-wide basis for employees who were not given a second rest period after six hours of work.
The Lack of an Offending Policy Precluded Certification regarding Alleged Off-the-Clock Work
With respect to the plaintiffs’ allegations that they were required to work off the clock, the Court held that class certification was inappropriate because, unlike the evidence of a uniform rest period policy that violated California law, there was no evidence (or any allegations) of a systematic policy or across-the-board pressure to require employees to work off the clock. While this holding sheds little light on off-the-clock claims, it remains advisable for employers to specifically forbid off-the-clock work in their formal employment policies.
SIGNIFICANCE OF BRINKER
Brinker clarifies and explains statutory and regulatory provisions, which have been, and continue to be, the subject of numerous class actions. While Brinker does not address every conceivable meal and rest period issue, it presents a unique opportunity for employers to manage the risk of class action wage and hour liability by implementing policies that attempt to track the Court’s holdings. This includes, at a minimum, making sure company policies are designed to make meal periods available, making sure meal periods are accurately and diligently recorded, and providing rest periods at the intervals set forth by the Court.
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