On July 22, 2008, a California Court of Appeal reversed an order certifying a class of employees that claimed numerous violations of the California Labor Code. As an initial matter, the court clarified that an employer's responsibility to "provide" meal breaks "does not suggest any obligation to ensure that employees take advantage of what is made available to them." Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2008 WL 2806613). The court explained that the language in section 512 of the California Labor Code means that employers need only offer meal breaks and do not need to police their employees to ensure that meal breaks are actually taken. However, the court did provide examples of how an employer would be non-compliant, such as when an employer did not schedule meal periods, did not have a policy authorizing meal periods, or pressured employees to skip meals. The court noted that if an employer knew that employees were working while eating, and did not take steps to address the situation, the employer would be depriving employees of their breaks and therefore would have failed to "provide" meal periods. The court also expressly rejected the concept of a "rolling 5-hour meal period" advanced by the plaintiffs, holding that employers are not required to provide a meal period for every five consecutive hours worked. An employer need only provide a 30-minute break once at any time during a work period that does not exceed ten hours.

The court further concluded that employers need only authorize and permit rest periods every four hours or "major fraction thereof" and such breaks need not, where impracticable, be in the middle of each work period. The scheduling of a rest break depends on the circumstances of the employment. In addition, while employers may not compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.

Resolving the case favorably for employers, the Court of Appeal concluded that the lower court abused its discretion in certifying the class because class treatment of these claims would not be appropriate as each required an individualized assessments of the facts. Since rest and meal breaks need only be provided and not "ensured," the court stated that such claims should be decided on a case-by-case basis in order to determine why breaks were taken or shortened. Violations of the Labor Code would only occur if the employer failed to make the rest or meal periods available rather than if the employee chose not to take them. Factors such as lack of class-wide practice regarding meal periods or lack of evidence showing denial of meal periods favor individualized adjudication over class treatment. Similarly, the timing of rest periods would also require determinations based on the nature of an employee's employment, and thus liability would only be established on an individual basis. In addition, the remaining claims involving off-the-clock work and time-shaving required a case-by-case analysis of whether each employee did so voluntarily, was required to do so by the employer, and whether the employer was aware of such a practice.

Employers should pay particular attention to their existing company policy on meal and rest periods and whether there is a policy discouraging off-the-clock work and time-shaving procedures. Employers also should be aware that this decision may be appealed to the California Supreme Court.