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:
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.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Fischer-Debra
This article was originally published by Bingham McCutchen LLP.