Brinker Decided at Last: California Employers Not Required To Be “Lunch Police”

Eight years of litigation have finally resulted in a definitive ruling from the California Supreme Court that California employers need only provide employees with duty-free meal periods and rest breaks. They are not required to police them by ensuring that employees take their meal periods and breaks and perform no work. We are of course referring to Brinker Restaurant Corporation v. Sup. Ct. of San Diego County and Adam Hohnbaum et al. (“Brinker”), which, until the Supreme Court’s decision yesterday, had been pending before the Court for years.

Brinker was a class action lawsuit filed on behalf of non-exempt hourly employees alleging that various restaurants owned by Brinker, including Chili’s and Macaroni Grill, did not provide employees with meal and rest breaks that complied with California law, either because the breaks and meals periods were not provided at the proper time or not provided at all, or because employees occasionally performed work during these periods. The trial court certified three subclasses based on allegations that Brinker (1) failed to provide rest breaks or to pay premium wages in lieu of rest breaks; (2) failed to provide meal breaks, or to pay premium wages in lieu of meal breaks; and (3) required employees to work off-the-clock during meal periods and unlawfully altered employee time records. The Court of Appeals, believing that employers need only “provide” such meal periods and breaks and not “ensure” they are taken, issued writ relief and ordered the three subclasses decertified. The intermediate court rejected class action treatment in part based on the plethora of individual issues that would have to be litigated to determine whether, in any given case, the employee’s not having taken a break, or having performed work during the break, was by personal choice or instead because the employer either implicitly or explicitly insisted on such work or otherwise discouraged employees from taking their breaks. The California Supreme Court granted review to consider both what California law requires regarding meal periods and rest breaks, and also what factors courts need to consider in deciding whether class treatment should be approved.

As the Supreme Court noted, California law has, “for the better part of a century,” guaranteed employees meal and rest periods. The validity of those requirements was not at issue in the Brinker case. Rather, the key practical question in Brinker — the one that everyone reads about — was the “provide” or “ensure” issue: Does an employer comply with California law if it can show it “provides” employees the opportunity to take these statutorily mandated meal and rest breaks, or does the employer also have an affirmative duty to “ensure” or police whether employees actually take them. A secondary issue in the case — but one of special importance to employers and workers in service industries — is the “rolling five-hour” question: Must meal periods be provided after every five consecutive hours of work? For example, must an employee, who works a regular eight-hour shift but chooses or is asked to take his/her meal period after one hour of work, be provided a second 30-minute meal period at the conclusion of the sixth hour, resulting in two 30-minute meal periods during his/her eight-hour shift? Finally, the Court also considered some technical requirements regarding the taking of the statutorily-required 10 minute rest periods.

The California Supreme Court’s decision on these issues represents a big win for employers. Here are the particulars:

• Provide Not Ensure: The Court held that employers need only “provide” uninterrupted 30-minute meal breaks (i.e., the employer must “authorize and permit” them) but need not ensure that such breaks are taken. Thus, the employer satisfies its obligation if it relieves its employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take their breaks, and does not impede or discourage them from doing so. But the employer is not obligated to police meal breaks and ensure no work thereafter is performed.
• Meal Periods Based on Total Hours: The Court also held that meal breaks need only be provided based on the total number of hours worked per day (i.e., an employer must provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work). Employers do not need to provide a meal period every five hours, or five hours after the first meal period. Thus, an employee could have his/her first meal period at hour two, and second meal period at hour nine of a 10.5 hour shift.
• Rest Break Rate: Rest breaks can be waived, but must be authorized. The term “major fraction thereof” with respect to rest periods refers to periods of time greater than half of a four-hour time period, or greater than two hours. This means that employees are entitled to 10 minutes’ rest for shifts from 3.5 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.
• No mandatory sequence for breaks: There is no mandatory sequence for meal and rest periods (e.g. plaintiffs in Brinker argued that employers have a legal duty to permit a rest period before any meal period). The only constraint on timing is that rest breaks must fall in the middle of work periods “insofar as practicable.” Employers are thus subject to a duty to 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. The Court did not opine on what considerations might be legally sufficient to justify such a departure.

Although the spotlight in Brinker has focused on the “provide” vs. “ensure” and the “rolling five” issues with respect to meal and rest periods, the Court also offered guidance to lower courts regarding the analysis to be undertaken in deciding whether a given claim should be allowed to proceed as a class action. This aspect of the court’s holding has the potential to influence how these wage/hour claims are litigated in the future, an issue of major importance to employers. In rejecting class certification, the Court of Appeals in Brinker believed it had to consider the merits of the dispute — that is, what California law required in terms of meal and rest breaks — before it could decide whether class treatment was appropriate. It then proceeded to do just that, deciding that, for example, employers need only “provide,” not “ensure,” which meant, among other things, that numerous individual issues would have to be litigated, rendering class treatment inappropriate. The Supreme Court stated that while in many cases the merits of the dispute are “enmeshed” in the analysis of whether a class action is appropriate, a court faced with a request for class certification should avoid deciding the merits of the case unless it is absolutely necessary to do so. Offering policy arguments to support its decision, the Court pointed out that it is “far better from a fairness perspective” to treat class certification as a separate inquiry from the merits of a case, so that defendants who win or lose on the merits therefore win or lose against an entire class, rather than being exposed to multiple actions in which class certification on the same general issue is sought.

Based on the above conclusions, the California Supreme Court affirmed the trial court’s decision to certify a rest break subclass; remanded the issue of certification for the meal period subclass; and affirmed the Appellate Court’s decision to decertify the “off-the-clock” subclass.

Practical Effect and Significance for Employers

Ultimately, the Court’s decision in Brinker is a grant of flexibility to employers, who may now take comfort that scheduling meal and rest periods in accordance with the demands of their business is compatible with the requirements of California employment law. Indeed, it is being hailed by some as not only an “employer-friendly” decision but as “employee-friendly” as well, given that there are many employees, particularly in industries where they rely heavily on tips, who depend on being able to work through the busiest portion of their shifts versus being forced to take breaks during those more profitable times.

Nevertheless, employers must still undertake cautionary steps with respect to providing meal and rest periods for employees: although employers need not “police” breaks, they should avoid placing any duties upon workers during meal and rest periods, must still make good faith efforts to provide breaks in the middle of employee shifts where practicable, and should ensure that all time, including meal breaks, is accurately recorded.

The significance of Brinker, and the issues at stake, cannot be overemphasized with a four year statute of limitations for unfair competition cases in California, and a three year statute of limitations on meal period and rest break claims, a more burdensome ruling for employers could have caused an untold number of potential future litigants to bring wage and hour claims on top of the ones currently being litigated in California. Given the Court’s ruling, the many currently pending wage and hour claims will need to be reframed in light of the flexibility Brinker provides to employers in accommodating scheduling requests by both workers and the demands inherent in their business.

Contacts

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