Two recent cases from the California federal district courts signify a continuing trend of cases that are favorable towards employers who are required to provide non-exempt employees with meal and rest breaks. On August 19, 2008, in Kimoto v. McDonald's Corps, the Central District denied class certification to a putative class of McDonald's crew members who alleged they were improperly denied meal and rest breaks. On July 28, 2008, in Perez v. Safety-Kleen Systems, Inc., the Northern District held that absent satisfactory evidence that a company was discouraging its employees from taking breaks, a class could not be certified due to the lack of commonality between each individual class member's claims. Both cases come on the heels of the decision in Brinker Restaurant Corp. v. Superior Court, a July 22, 2008, case from the California Court of Appeal for the Fourth Appellate District, which overturned a class action against the parent company of Chili's Grill & Bar and held that although corporations are required to provide rest breaks to employees, they are not obligated to ensure that its employees take them. (See our Executive Alert on the Brinker decision.)
In Safety-Kleen, a putative class of customer service representatives alleged that Safety-Kleen refused to provide them with meal and rest breaks because it was impossible to get their work done without working through breaks. The putative class also argued that they were forced to take "on-duty" breaks without a written agreement to do so because they were given cellular phones and expected to maintain contact with their branch during their breaks. The Safety-Kleen court rejected Plaintiffs' meal and rest break claims in stating "evidence that plaintiffs were employed in high-pressure jobs is not, by itself, sufficient to defeat summary judgment."
More importantly, Safety-Kleen further distinguishes Cicairos v. Summit Logistics, 133 Cal. App. 4th 949 (2005), the case plaintiffs' counsel most often cite for the proposition that employers have "an affirmative obligation to ensure" that employees take meal breaks. Cicairos, 133 Cal.App. 4th at 962. The Safety-Kleen court distinguished the facts of Cicairos in ruling that "[a]lthough the employer did not actually prohibit meal periods, it discouraged drivers from taking breaks by regulating their activities to a significant degree without providing any means for drivers to take meal breaks." Safety-Kleen further distinguished Cicairos by stating:
The plaintiffs in Cicairos did not simply allege that the high-pressure nature of their work discouraged them from taking breaks; they produced evidence that their schedules were highly regulated through the use of activity codes and that the employer had provided no activity code for meal breaks. There is no authority for the proposition that an employer is liable for failing to provide meal breaks simply because an employee chooses to forego a meal break in order to complete his or her work, absent evidence of a specific employer policy or practice of discouraging breaks. [emphasis added]
The Safety-Kleen analysis is already being used by other California federal courts. For example, the Central District of California cited Safety-Kleen in its decision in Kimoto v. McDonald's Corps. The Kimoto court held that when interpreting state law, federal courts are bound by decisions of the state's highest court. In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). Thus, with regard to the issue of an employer's duty to provide meal and rest breaks to employees but not necessarily ensure such breaks, Kimoto agreed with Safety-Kleen's reasoning that "[t]he issue of whether rest periods are prohibited or voluntarily declined is by its nature an individual inquiry." The Kimoto court then reasoned that "this recent decision in Brinker provides a good indication of how the California Supreme Court would resolve the issue. If the issue were before it, the California Supreme Court would adopt Defendant's construction of the meal and rest provisions."
Kimoto went on to hold that a putative class cannot avoid the Safety-Kleen analysis by providing a sampling of punch records from several putative class members:
The Court cannot infer from the summary reports of various employees a company-wide policy of not authorizing meal or rest periods. First there is no financial incentive for an employee to clock in and out for a ten minute rest period, since that employee will get paid regardless. Thus, the Court cannot assume that the employees accurately recorded the timing of their breaks.
Thus, both Safety-Kleen and Kimoto stand for the proposition that employers must only ensure that meal and rest breaks are made available to their employees.
Impact on Employers
- There is no affirmative duty to police employees in order to ensure that each employee takes a meal or rest break. Employers need only provide the opportunity for employees to take breaks. Employers should take care, however, not to implement programs that knowingly discourage or make it more difficult for employees to take meal and rest breaks. Moreover, the Safety-Kleen court expressly distinguishes between corporations that are aware that its employees are working through break periods and those that have no reason to believe its employees are working through breaks.
- Employers should also avoid the appearance of their employees being forced to take "on duty" breaks. On duty breaks are only permitted when the nature of an employee's work prevents him or her from being relieved of all duties. Wage Order 7-2001 [citation]. The Safety-Kleen court permitted plaintiffs to proceed under the theory that because they were supplied with cellular phones and allegedly were expected to "maintain constant contact with the branch," Plaintiffs could proceed with the theory that they were required to take on-duty breaks and the Defendant's motion for summary judgment was denied with respect to Plaintiffs' claim that they were forced to take on duty breaks absent an express written contract to do so, in violation of Wage Order 7 [citation].
- Employers should ensure that their Employee Handbooks expressly state employees are required to take both meal and rest breaks. The Plaintiffs in Safety-Kleen alleged that because Safety-Kleen's Employee Handbook merely mentioned that employees were entitled to meal breaks, the company engaged in a practice of discouraging rest breaks. The court rejected Plaintiffs' argument but only because Plaintiffs did not submit evidence in their declarations that they relied on the Employee Handbook in deciding to forego rest breaks.