On October 22, 2008, the California Supreme Court granted review to decide “the proper interpretation of California’s statutes and regulations governing an employer’s duty to provide meal and rest breaks to hourly workers.” Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum), Case No. S166350. The Court is expected to address the following issues decided by the court of appeal: (i) employers must make rest periods available for every four hours worked, and that such rest periods need only be scheduled in the middle of a shift if “practicable”; (ii) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure that they are taken; (iii) meal periods need not be provided for every “rolling” five-hour period, but only for every five hours worked per day; (iv) employers are only responsible for off-the-clock work that they knew or should have known about; and (v) meal and rest periods claims are generally not amenable to class treatment.  

On October 23, 2008, the Division of Labor Standards Enforcement (DLSE) issued a memorandum stating that although Brinker is on appeal, the Department will continue to follow the majority of Brinker’s holdings. Although the DLSE’s memorandum is not binding on the courts, its Brinker bent is now supported by yet another Court of Appeal decision in California, issued on October 28, 2008, in the matter of Brinkley v. Public Storage, Case No. B200513. There, the Second Appellate District ruled, consistent with Brinker, that “provide” means “make available,” and that the first meal break need not be provided within the first 5 hours of work, as long as a 30-minute break is available for every 5-hour work period.  

Going forward, although the law remains unsettled in this area, employers should maintain written policies articulating employees’ rights to take meal and rest breaks, ensure that those policies are distributed, continue to document meal breaks, and train supervisors and managers regarding the availability of meal periods and the potential consequences for violators.