Overview: On July 22, 2008 a California appellate court handed down an important decision in the ongoing battle to define the guidelines employers must follow in providing meal and rest breaks for their employees. But while the decision in Brinker v. Superior Court of San Diego was widely viewed as a win for California employers, human resource managers shouldn’t rush out to overhaul their policies related to meal and rest breaks—at least not yet, according to two veteran Pillsbury employment and labor law attorneys.

Here, Paula M. Weber and Thomas N. Makris, attorneys in Pillsbury’s San Francisco and Sacramento offices, discuss the Brinker decision and how it might impact employers, large and small.

Q. What does this decision mean in broad terms?

Weber: The court said that while California employers must allow non-exempt employees to take regular meal and rest breaks, companies are not required to force employees to actually do so.

Makris: This decision has attracted broad support from the business community and Governor Arnold Schwarzenegger. That’s because it recognizes the practical realities of the workplace and gives broader flexibility to employers as to when and whether employees take their breaks. Prior to this, decisions of the California appellate courts held employers strictly liable if employees missed breaks or took them at later times in the day.

The reality is that some employees may want to take a late lunch to go to a doctor’s appointment or to skip the meal break altogether so that they can leave early. I know of one fellow, for instance, who had child care issues that limited him to eight hours at work. He wanted to eat lunch at his desk while he worked so that he could put in, and get paid for, a full day and still take care of his child. Under prior decisions, an employer couldn’t let him do that. And that wasn’t good for him or his employer.

Q. What does the Brinker decision mean in practical terms for employers today?

Weber: While we think the decision is great news for employers and employees, Brinker is probably not the last word on the issue. Attorneys for the plaintiff will likely appeal the decision to the California Supreme Court, and whether or not the Court accepts it for review is an open question.

As of today the law remains uncertain. Plaintiff’s lawyers read the Cicairos case coming out of the Third District in Sacramento in 2005 as requiring employers to ensure these breaks. Although the Brinker Court does a good job distinguishing the Cicaros case and holds that it is limited to its facts, until the Supreme Court resolves the issue, California trial courts can choose to follow Brinker or they can choose to follow the plaintiff’s interpretation of Cicairos.

Weber: Given the remaining uncertainty, employers should not take too much comfort from this decision yet. The wise thing to do is to continue to follow current employment policies and ensure that employees actually do take their breaks.

Nor does the decision change the fact that employers must record the start and stop times of all meal breaks. Whether employees clock in and clock out electronically, or use time sheets that are handwritten, the start and stop times of meal breaks have to be recorded.

Q. In light of Brinker, what are you advising your clients to do?

Makris: As Paula indicated, for now the advice is to keep requiring employees to take their breaks. When and if the Supreme Court adopts the reasoning of Brinker, employers will still need to have well-written meal and rest break policies. Under Brinker, employers would still need to make it clear to all non-exempt employee that they are entitled to their meal and rest breaks and that no supervisor or other person has authority to ask them to skip the breaks. There should also be a grievance or complaint system in place so that employees can report, and are encouraged to report, circumstances in which they feel they are being denied breaks by their supervisors. Employers should also pay attention to instances when employees are not taking their breaks and make sure it is clearly their choice to forego the breaks and document those choices in writing.

Q. What does this mean to litigation going forward?

Weber: In Brinker, the court concluded that the class certification order issued by the superior court was erroneous because the court failed to properly consider the elements of the plaintiff’s claims in determining if they were susceptible to class treatment. The court found that the evidence in the Brinker case indicated that some employees took meal breaks and others did not. For those who did not, the reason they declined to take a meal period requires individualized adjudication. While time cards might show when meal breaks were taken and when they were not, they can’t show why they were not taken.

This may greatly diminish class actions on meal and rest break cases. Before this, many plaintiffs were getting these cases certified because the court believed plaintiffs only had to show time sheets in which breaks were not being recorded, or breaks were being taken late or not at all. Now, the questions are very individualized: did employees take their breaks and, if not, did they voluntarily not take their breaks?

Going forward, we could see a reverse in the recent increase in big-ticket meal and rest break litigation. Those cases really took off last year in the wake of the Supreme Court’s Kenneth Cole decision. That case increased the statute of limitations for making meal and rest break claims to four years and that resulted in a big uptick in class actions.

When not a part of a class, individual claims will less likely result in civil litigation and will more likely go to the Department of Labor Standards Enforcement, which can handle claims quickly and more efficiently than the courts.

Makris: While we are optimistic about of the outcome of Brinker, it is critical to remember that the law has not been resolved. Things are still very much up in the air. I doubt that large employers such as restaurant chains or retailers will make wholesale changes in their policies based on this decision. But it’s very good news for employers and employees. We certainly believe that the Supreme Court should resolve this issues once and for all and should adopt the reasoning of Brinker