Employers with employees in California will be particularly happy to hear that the California Supreme Court has finally issued a decision in Brinker v. Superior Court, bringing some much needed clarity to the hotly debated and litigated issue of an employer’s obligations to provide meal and rest breaks under California law. But employers everywhere should take note of this important decision, which provides some guidance to employers on avoiding class action lawsuits.
This class action was brought by restaurant employees claiming they were denied rest and meal periods and required to work off the clock. The trial court certified subclasses without deciding how the meal and rest break requirements would be applied to the plaintiffs’ claims. The Court of Appeals, however, concluded that employers need only provide employees with an opportunity to take their breaks and need not actually ensure that they are actually taken. The Court of Appeals stated that, given the law and the necessity of an individual inquiry for each plaintiff, the claims were not amenable to class treatment. The California Supreme Court granted review and employers and employment lawyers have been waiting more than two years for a decision.
Under California law, employers must “provide” employees who work five or more hours with a thirty minute, off-duty, unpaid meal period. (This is in contrast to laws in some other states, such as Maine, which require only that employers give employees “the opportunity” to take whatever break time is required by statute.) The scope of the employer’s duty under California law has been the subject of much debate, with plaintiffs arguing that employers have an obligation to ensure employees actually forgo working during their breaks. The Brinker decision clarifies the scope of the employer’s duty, confirming that an employer meets its statutory obligations as long as 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.” In a nutshell, California employers “need not ensure that no work is done during an employee’s meal period.”
The Court also clarified how the five-hour trigger is measured, balancing the employee’s right to take a break with the employer’s need to staff its business. Specifically, the Court held that employees are entitled to a first meal period after no more than five hours of work and a second meal period after no more than ten hours of work. In so doing, the Court rejected the so-called “rolling five hour” rule advocated by the plaintiffs’ counsel, under which an employee who is scheduled to work, for example, an eight hour shift and takes a meal break after three hours of work is entitled to a second meal break five hours later.
The Court also addressed the frequency with which rest breaks must be provided. The relevant California Wage Order requires employers to permit employees to rest periods, “which insofar as practicable shall be in the middle of each work period.” It further provides that the “authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours.” The plaintiffs argued that the defendant employer’s policy, which provided one 10-minute rest break per four hours worked, did not comply, insofar as it did not authorize a second rest break for employees working shifts longer than six, but shorter than eight, hours.
After analyzing the Wage Order’s language and interpreting the term “major fraction” to mean “any fraction greater than half,” the Court concluded that “[e]mployees are entitled to 10 minutes’ rest time 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 defendant’s rest break policy did not allow for sufficient breaks, the Court concluded that the trial court had properly certified a rest break class.
Finally, the Court agreed with the Court of Appeals’ decision against certification of the off-the-clock subclass. With no evidence of a uniform, company-wide policy to force employees to work off the clock, certification was inappropriate.
In addition to providing much needed, and generally employer-friendly, clarity to California employers on meal and rest breaks under California law, Brinker makes it more difficult for plaintiffs alleging meal break violations to proceed collectively in that state. Under Brinker, in the absence of a uniform policy or company-wide practice, meal break liability is very difficult to establish on a class wide basis because the question of whether an employer discouraged or prevented an employee from taking his or her break will be dependent on individual facts. The Court remanded the question of whether the meal break subclass was properly certified, however, so employers will have to wait to see whether the trial court agrees. Moreover, while Brinker does not have precedential value outside of California, it does constitute persuasive authority in other jurisdictions that courts can and should evaluate the merits of a case before ruling on class certification, when “evidence of legal issues germane to the certification question bear as well on aspects of the merits.”
Post-Brinker, as before, and both within and outside the state of California, it is critically important that employers’ policies be facially compliant with the wage and hour laws because facially non-compliant policies may support class certification. If you have questions about the Brinker decision, meal and rest break practices, or policy compliance, please contact Katy Rand at email@example.com, or any other member of Pierce Atwood’s Employment Group.