Today, the California Supreme Court heard oral argument in the long-awaited “meal and rest” case: Brinker Restaurant Corp., et al v. Superior Court.  The main issue in this case is whether an employer is only required to make meal periods available to employees or whether an employer has an affirmative obligation to ensure that meal periods are taken.  The case also revisits the scope of California class action certification law.

On the merits, several justices appeared to be favorably disposed to the employer’s interpretation of California Labor Code section 512, the meal period statute.  That law says:

An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

This debate is more than academic—it is extremely important to California employers.  If they must “ensure” that meals are taken by their non-exempt employees, then they must strictly police meal breaks to make certain that they are being taken.  However, if employers need only “make available” meals breaks, then the employer’s meal period obligation should be satisfied so long as employees are permitted to take a timely, 30-minute meal period, regardless of whether the employee decides to take a shorter meal period or no meal period at all.

Justice Kennard, in particular, made it clear that she believed the word “provide” means “make available.”  Justice Baxter seemed to agree, noting that the wage orders do not use that term, but that the statute does.  He stated, “In my view, that is important.” 

Justice Liu focused on the same debate.  He had an interesting angle:  What if the employer provided a meal break and yet the employee continues to voluntarily work because he/she loves the job?  Why isn’t that permissible?  What are the ramifications of such a situation? 

There was no response to this line of questions that seemed to satisfy the justices.  Plaintiffs’ counsel, Kimberly Kralowec, could only reply that the employer would be in the position to discipline the employee for working during mandatory lunch break, similar to an employee who continues to work overtime despite a clear rule forbidding such work.  That answer did not seem to be well received.

Aside from the debate about the interpretation of the word “provide,” there was a good deal of argument on when non-exempt employees must take their meal breaks.  Apparent support was found among the Court for the idea that employers must enforce a “rolling five hour” rule.  This is the theory that a California employer must provide an uninterrupted meal for every five consecutive hours of work. 

Justice Liu, in particular, seemed attached to this position.  He suggested that if an employee worked a 9:00 A.M. to 6:00 P.M. shift and takes his meal period from 12:00 to 12:30, he may be entitled to a second meal break for the remaining 5.5 hours of work.

If this “rolling five hour” rule is adopted, then employers will be forced to structure meal breaks very close to the middle of each shift regardless of the needs of the business or the desires of the employees.  This is because a second meal break (or a penalty for a missed meal break) would be required if employees work five hours after taking their first meal break. 

If that is how the opinion is written, then the practical result may be to force employers to “ensure” that non-exempt employees are permitted to take meal breaks at a certain time (i.e., the middle of the shift).  This is true even though section 512 seems likely to be interpreted as requiring only that the employer “make available” a meal break. 

Justice Werdegar, Liu and Chief Justice Cantel-Sakauye all seemed to agree that the California Wage Order in this case (Wage Order No. 5) requires this rolling five hour rule. 

There was little argument on the class certification issue.  Counsel for the employee, Michael Rubin, focused on the rules of appellate review, elevating procedure over substance for the most part.  He argued that the trial court exercised discretion in its findings and that should be  enough for this Court. 

On the substance, it appears that the Court may conclude that the lawfulness of an employer’s policy, by itself, would constitute a common question applicable to the entire class and thus, would be a sufficient basis for certifying a class.  This was a point made by Mr. Rubin and none of the justices questioned him on it.  Moreover, it would still leave open the question, pre-certification, as to how a certified class of employees would actually prove liability even if the policy was found to be unlawful.

Typically, trial courts desire to see how the policy is applied before certifying a class action based on the policy.  Yet, there was no discussion about the vagaries of applying an employer’s policy across a putative class of employees.  This was an opportunity for robust debate on a core class certification issue, but none took place.  

Also, Mr. Rubin concluded that class certification would be appropriate from surveys and validating depositions.  That theory, however, was undermined by the United States Supreme Court’s pro-employer opinion in the Wal-Mart Stores, Inc. v. Dukes case from June of this year.  Surprisingly, no one on the California Supreme Court engaged a debate on this subject.  This raises the question of whether there will now be a dissonance between federal law on class actions and California state law on the question of surveys and statistical analysis.

The Supreme Court has 90 days to issue its decision in this important case.