As we reported in our One Minute Memo® dated October 24, 2008, California Supreme Court Grants Review of Brinker, the California Supreme Court recently accepted the plaintiff’s petition for review in Brinker Restaurant Corp. v. Superior Court, making that case no longer citable as authority. In Brinker, the Court of Appeal held that employers were not required to ensure employees took meal and rest periods, but instead were simply required make them available to employees. On October 28, 2008, another division of the California Court of Appeal came to this same conclusion in a published opinion.
In Brinkley v. Public Storage, Inc., the plaintiff property manager sued his employer alleging, among other things, that Public Storage failed to provide meal and rest periods in accordance with Labor Code section 512 and the IWC Wage Orders. Plaintiff also alleged Public Storage failed to provide accurate wage statements, in violation of Labor Code section 226(a). The trial court certified plaintiff’s meal period and 226(a) claims for class action treatment, but denied class treatment for plaintiff’s rest period claim. Public Storage brought a motion for summary adjudication on plaintiff’s individual rest period claim, and on the meal period and 226(a) class action claims. The trial court granted the motion. The appellate court affirmed.
Meal and Rest Periods
In Brinkley, the appellate court picked up where Brinker left off, holding that “providing” a meal period under California law requires an employer to “supply [it] or make [it] available.” According to the court, nothing in the statute or wage orders requires employers to “ensure” that meal periods are actually taken. Since plaintiff could not produce any evidence that meal periods were “denied” to him or class members, summary adjudication was granted.
Similarly, also in line with Brinker, the court held employers have no affirmative obligation to “ensure” rest breaks are actually taken. Instead, an employer’s obligation is simply to make them available.
Summary adjudication was granted because substantial evidence supported the proposition that Public Storage made meal and rest periods available: (1) Public Storage had written policies on meal and rest breaks; (2) plaintiff was aware of the policies; (3) employees had been reprimanded for not taking meal periods; (4) employees were advised at a meeting that they were required to take meal and rest breaks; and (5) twenty-one employees testified in declarations that they were allowed to take meal breaks at their discretion.
The plaintiff also argued that Public Storage violated Labor Code section 512 because it failed to provide the meal period during the employees’ first five hours of work. The court rejected this argument, finding nothing in the meal period statute or wage order that supported the contention that meal periods must be taken within the first five hours of an employee’s shift.
Brinkley is good news for employers because it follows what is now getting to be a long line of cases holding that employers are not required to “ensure” meal and rest periods actually are taken by employees. Brinkley also supports the proposition that employers may provide required meal periods any time during the employee’s shift, not only within the first five hours.
Public Storage reported three types of earnings on plaintiff’s pay statement, regular hours, overtime hours and associated mileage hours. Plaintiff and other property managers were paid associated mileage at a rate of $0.19 per hour, whether or not they were traveling. Due to an inadvertent error, Public Storage listed $11.20 as the associated mileage rate on plaintiff’s pay statement. Even though the associated mileage rate was listed in error, the actual number of hours worked and compensation were correct. When the error was detected, Public Storage corrected it.
Based on the pay statement error, plaintiff alleged Public Storage violated Labor Code section 226(a), which lists nine categories of pay related items that must be included on every pay statement. Under section 226(e), employees may be entitled to recover actual damages or penalties up to $4,000 per employee for violation of 226(a).
The court granted Public Storage’s motion for summary adjudication because plaintiff failed to prove that Public Storage “knowingly and willfully” violated section 226(a). Instead, Public Storage made an inadvertent mistake that was corrected when discovered. Moreover, Public Storage had no motivation to overstate the associated mileage rate, and did not benefit in any way from the error. Plaintiff also failed to prove that he or any other class members suffered any injury due to the mistake.
Thus, according to Brinkley, to prove a violation of Labor Code section 226(a), an employee must prove that the employer knowingly and willfully violated section 226(a), and that the employee actually suffered injury as a result of the violation. Inadvertent mistakes which do not work to the benefit of the employer are not considered knowing and willful violations.
If plaintiff seeks review of the case from the Supreme Court, there is a good chance that the court will grant review and hold the status of Brinkley in abeyance, pending the outcome of Brinker. Stay tuned.