At long last, the California Supreme Court has issued the decision that every California employer has been waiting for—Brinker. After three and a half years, the Court has elucidated the scope of an employer's meal period obligations, as well as timing and frequency requirements for meal and rest breaks.
The highlights for employers are:
- In providing meal periods, employers are not required to police and ensure they are taken.
- There is no "rolling 5" hour timing requirement for providing meal periods.
- Rest breaks do not necessarily have to be provided before a meal period and the Court has provided employers with a detailed breakdown of the rate at which rest breaks must be permitted.
- "Off-the-clock" work claims generally are not susceptible to class certification when the employer's policies prohibit working off the clock.
California employers are required to "provide" meal and rest periods for their non-exempt employees within a certain number of hours. Cal. Lab. Code §§ 226.7, 512. Generally, the employer must provide a ten minute paid rest period for every four hours of work and an unpaid, uninterrupted 30-minute meal period for every five hours of work. California penalizes employers for one hour of "premium pay" at the employee's regular rate for each category of violation in a workday. The rest period requirement has generated less controversy because courts had concluded that the employer need only make such breaks available not ensure that they be taken. The question remained, however, as to whether employers need only make meal periods available or whether they must actually force (or less threateningly "ensure") that the employees actually take them. California state and federal courts had been split on this issue, and a split among California appellate courts arose when one court of appeal decided the case of Brinker Restaurant Corp. v. Superior Court, 2007 WL 2965604 (Ct. App. Oct. 12, 2007). The trial court in Brinker had construed the law to require the employer to ensure that meal periods were actually taken. It certified classes for rest periods, meal periods and for so-called "off the clock" time. The court of appeal reversed, however, finding that the employer need only make meal periods available and also concluding that the classes had not been properly certified. In October 2008, the California Supreme Court accepted review.
THE COURT'S DECISION
The Court's decision addresses a host of issues, including rest periods, meal periods, whether the court should consider the merits of a case on certification, as well as others. In reaching its conclusions, the Court relied heavily upon its interpretation of language from the Industrial Welfare Commission's (IWC) Wage Orders, which it indicated "are to be accorded the same dignity as statutes." For the most part, employers prevailed on the important substantive aspects of the case, but the certification parts of the order are more mixed:
Duty to Provide Meal Periods
Employers do not need to ensure that employees are actually taking their meal periods and are not liable for premium pay, even if they are aware that an employee is working through a meal period, so long as they have provided a meaningful opportunity to make them freely available. (However, employers should note that they may be liable for straight pay during an employee's meal period if they knew or reasonably should have known that the worker was working through the authorized meal period). In the words of the Court:
To summarize: An employer's duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. five is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.
The Court, however, found that there is no bright-line test for when the employer has satisfied its obligation to provide a meal period:
What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.
This is an issue that may lead to litigation, but it may also make it more difficult for plaintiffs to certify a class because the context may vary between different situations.
No "Rolling 5" Hour Rule for Meal Periods
The Court rejected a "rolling" time period urged by the plaintiff that would have required a second meal period no later than 5 hours after the end of a first meal period if a shift continues beyond that point. A contrary ruling by the Court would have made it more difficult for employers to administer the law's requirements and could have had devastating financial consequences if retroactively applied. Fortunately, the Court concluded that "absent waiver, [the law] requires a first meal period no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work" and that, contrary to the plaintiff's argument, the law does not impose additional timing requirements.
Courts Deciding Certification Can Peek at The Merits
The Court held that it should defer to the trial court's decision to certify a class so long as it is supported by "substantial evidence." More importantly, citing the United States Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), it held that the trial court may "properly evaluate" the merits of a case when "evidence or legal issues germane to the certification question bear as well on aspects of the merits." This is generally a positive standard for employers as oftentimes the merits will demonstrate that certification is not appropriate.
Computation of Number of Rest Breaks
Employers are required to provide employees a 10-minute rest break for every four hours of work "or major fraction thereof." The parties argued for differing interpretations of how many breaks employers must provide depending on the length of a given shift. Harmonizing the Division of Labor Standard Enforcement's interpretation of the phrase "major fraction thereof," as applied to a four-hour period, to mean any amount of time in excess of two hours (or any fraction greater than half) with Wage Order language specifying that "a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours," the Court ruled that employees are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.
Because the Court found that Brinker's uniform policies allegedly did not satisfy the employer's obligations under these timing requirements, the Court found that a rest period class had been properly certified. This is a positive for the employees, but leaves open the question of whether such a class could survive if the employer's policies were in compliance with the legal requirements which the Court has now clarified.
Trial Court Must Revisit Meal Period Class
The Court found that the trial court had improperly construed the law with respect to the need to ensure employees took their meal periods and how the time for such periods had been computed. It remanded the case for further consideration under the correct standard while observing that the class definition as drawn includes employees with no possible claim under the "rolling 5" meal period theory.
"Off-the-Clock" Claim Should Not Have Been Certified
The Court found that no substantial evidence supported the existence of an "off-the-clock" class and therefore found that it should not have been certified. This is a very good aspect of the decision for employers because, as is true in most off-the-clock cases, it recognized that the trial court would need to determine liability on an individual basis.
THE TAKE AWAY
Overall, the Brinker decision is more good for employers than not. As to the most important issue, it adopted a more employer-friendly view of the meal period requirements. While the employees won a technical issue regarding the calculation of rest periods, for most employers this should not prove especially problematic. With regard to certification, the court did affirm certification given a uniform arguably non-compliant break policy, but did not issue broad pronouncements that such cases should be certified in the future and, in fact, found absent a uniform policy (as in the case of off the clock time) a claim should not be certified. This holding may prove especially important for employers in the future as it cuts into the heart of many wage and hour putative class claims.
In light of this ruling, employers should review their policies and practices to ensure they are complying with California's meal and rest break requirements as interpreted by the Court.