California Employment Law : Employment Lawyer & Attorney : Fox Rothschild Law Firm : San Francisco, Oakland, Los Angeles, San Diego

Meal and rest period class actions haven't gone away since the California Supreme Court issued its Brinker decision. While it's become harder for plaintiffs to get classes certified, there's an approach they've been using more and more often.

Most employers realize the importance of policies that specifically inform employees of the breaks that they're provided. But plaintiffs have been arguing that policies and practices are two separate things.

While policies are an important first step, employers need to ensure that they're actually followed. The best policy in the world won't save you if staffing, scheduling, work assignments, or pressure from supervisors prevent employees from taking the breaks they're entitled to.

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Six cases that had been in grant and hold status with the California Supreme Court pending the decision in Brinker v. Superior Court were all transferred back to their respective Courts of Appeal today.  The six cases are: Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Tien v. Tenet Healthcare, Flores v. Lamps Plus, and Hernandez v. Chipotle.  In all six cases, the Courts were instructed to vacate their prior decisions and reconsider the actions in light of the Brinker decision. 

Of these six cases, only Brookler found that a meal period class was appropriate, citing to the case of Cicairos v. Summit Logistics for the proposition that employers have an affirmative duty to ensure the employee is relieved of all duty during a meal period. In contrast, the other cases all found that meal period classes were inappropriate, generally holding that an employer’s duty was only to provide meal periods to employees, not ensure that they were taken. However, in Faulkinbury, the Court denied class certification to the meal period class because there was a lack of common issues due to the many site-specific circumstances affecting the employees’ ability to take their meal periods. 

While the appellate courts are obligated to follow the state supreme court's holding, the real impact of the Brinker decision will now be felt as the Courts apply that holding to the specific issues before them.  We will provide updates on these cases as they become available. 

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According to Shakespeare, “brevity is the soul of wit.” So perhaps the individuals drafting section 11(A) of the Industrial Welfare Commission Wage Orders thought they were being witty when they wrote that “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .” But as the California Supreme Court pointed out in the week-old Brinker decision, “[t]he wage order employs no verb between 'without' and 'a meal period' (e.g., providing, requiring, offering, allowing, granting) to specify the nature of the employer’s duty.”

So that’s what it comes down to in the end. Three years of uncertainty, hundreds of class action lawsuits, and hundreds of millions in attorneys’ fees and settlements over a missing verb. Those drafters really knew how to [insert verb of your choice] things up.

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While the focus of post-Brinker discussion has been meal breaks, let’s not forget that the Court also clarified rules regarding rest breaks. Again, we have math. The wage orders provide that employers must “authorize and permit” employees to take rest periods “at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” The Court found that “major fraction thereof” means more than half, and actually gave some details that should be instructive to employers.  Employees are entitled to:

• One 10 minute break for shifts between 3.5 and 6 hours.
• Two 10 minute breaks for shifts of more than 6 hours and up to 10 hours.
• Three 10 minute breaks for shifts of more than 10 hours and up to 14 hours.

The Court also held that while rest breaks should generally be taken before and after a meal break, that sequence is not required if not practical. This is excellent news for the hospitality industry. For example, if a restaurant server works 5 pm to 1 am, and takes an early meal break at 6 pm, it is now okay to have the employee take 2 rest breaks thereafter.

The next logical question is whether employees can now combine meal and/or rest breaks. That question was not addressed by the Court, however, the Court did indicate that the best practice is still to have rest breaks and meal breaks in the middle of each work period. So it seems that combining breaks is still a somewhat risky endeavor. Plus, it can be a logistical challenge if employees still clock out for unpaid meal breaks, but don’t for paid rest breaks.

What is the take-away for employers? First, make sure that rest break policies either include the language “every 4 hours or major fraction thereof” or include the specific list of how many breaks an employee is entitled to per hour worked as listed above. Second, confirm that managers understand the number of breaks that must be provided, and don’t engage in conduct that undermines or prevents employees from taking breaks. Third, make sure meal and rest break policies include a sentence about what the employee should do if unable to take breaks for work related reasons.

Don't forget to clarify best practices with regard to rest breaks going forward.

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We have all read the alerts and blog postings indicating that employers are only required to “provide” meal breaks, but need not “ensure” that they are taken. What does that really mean for employers? Do employers still need to pay the meal premium for missed breaks, late breaks, and breaks less than 30 minutes?

California law requires employers to pay one hour of pay at the employee’s regular rate of pay for any missed meal. This is called “premium pay” (formerly known as “penalty pay”). Before the Brinker ruling, premium pay was arguably required in other situations too, such as any meal taken after the end of the 5th hour, any meal taken after a 5-hour period of work under the “rolling 5-hour” theory, and for any meal that was not a full 30 uninterrupted minutes.

Employers that were automatically paying the meal premium for missed breaks, breaks taken at the wrong time, and/or breaks that were not a full 30 minutes may not need to keep doing so. Whether premium pay is owed will turn on the question of why the employee missed the break, took the late break or took too short of a break. If it was not based on work requirements, then the meal premium need not be paid. Why? Because the standard now is that employers need only provide the break, but not ensure it is taken.

For example, if an employee is scheduled for a break at noon, but decides to take a late meal break to coincide with a doctor’s appointment at 3:00 pm, then no meal premium is owed because the employee was provided a break by the end of the 5th hour, but decided not to for non-work reasons.

Some employers have set up automated systems that trigger a meal premium when the first 5 hours are worked without a meal break. Those employers may want to change those systems and save associated costs.

A note of caution. Before an employer stops paying meal premium for missed, late or too short meal breaks, it should have a policy that authorizes and permits a meal break by the end of the 5th hour of a shift, and sets out a procedure to follow if work duties prevent employees from taking a break. Employees should sign off on the policy. Even better, employers may now want to schedule breaks to make sure they have proof that breaks were “provided.”

Here’s how it could work. A legal secretary is prevented from taking a meal break by the end of her 5th hour of work due to a time sensitive court filing. She tells the Office Manager that she can’t take a break until the court filing goes out at 3 pm. The Office Manager approves the late meal and processes the meal premium. Another example: A nurse is unable to take a meal break due to a patient emergency. She fills out a standard “Missed Meal” form, her supervisor approves it, and submits it to payroll to pay the meal premium.

Employers should keep in mind that such a case-by-case approach may not be feasible for employers who do not have processes in place to document when a late meal is due to work versus personal purposes. In such cases, keeping systems automated may still be the best practice even though it may result in paying the meal premium when it isn’t necessarily required.

Stay tuned for more practical advice based on Brinker.

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After more than three years and two rounds of briefing, the California Supreme Court has issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court. Overall, the decision is a significant win for employers. Here are the key points in the unanimous decision that the Court issued today:

• Employers do not have to police their employees to make sure that they’re taking their meal breaks. They're required to (1) relieve employees of all duty; (2) relinquish control over their activities; and (3) permit them a reasonable opportunity to take an uninterrupted 30-minute break.
   
• Employers still need a meal break policy and still need to record the time that employees begin and end their breaks. But if employers make the breaks available (as specified in the prior paragraph) and an employee cuts his or her break short (or doesn’t take one), the employer does not owe a penalty. The employer would, however, need to pay the employee for the time worked.
   
• As before, employers have to mean it when they say they’re making the meal breaks available. They can’t pressure employees or provide incentives for them to skip breaks.
   
• There is no rolling 5-hour rule. In other words, there’s no penalty if an employee works 5 consecutive hours without a meal period (as the plaintiffs in Brinker argued). This is a huge relief because, when the Court asked for post-hearing briefing on this issue, it raised the specter that almost every employer in the state had a policy that was wrong.
   
• So the rule for meal periods remains:
  
  o       Employees who work no more than 5 hours get no meal period.
  
  o       Employees who work over 5 but no more than 6 hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the 5^th hour.
  
  o       Employees who work more than 6 but no more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the 5^th hour.
  
  o       Employees who work more than 10 hours get a 2^nd meal period. If they work no more than 12 hours they can waive it. If they don’t waive it, the meal period must begin by the end of the 10^th hour.
   
• The rules for rest breaks remain the same.
  
  o       Employees who work no more than 3.5 hours get no rest period.
  
  o       Employees who work 3.5 to 6 hours get 1 rest period.
  
  o       Employees who work more than 6 and up to 10 hours get 2 rest periods.
  
  o       Employees who work more than 10 and up to 14 hours get 3 rest periods.

There will still be wage and hour class actions and, in some ways, the Court lowered the bar on the procedural requirements for getting a class certified. But overall, employers can breathe a collective sigh of relief.

Many thanks to Nancy Yaffe for helping to put this information together. If you'd like to read the full opinion, you can do so here (pdf).

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Patience is a virtue. I get that. It’s just not one of my virtues. That’s why I wrote here and here and here about wanting the California Supreme Court to hurry up and give us a decision in Brinker Restaurant Corp. v. Superior Court. We’ve been waiting more than 3 years for a decision from the court in a case that will define the scope of an employer’s obligation to provide meal periods to non-exempt employees (and thereby all but determine the outcome of hundreds of pending cases).

Well the latest word is that we’ll have a decision in April 2012. But I’m done stressing about it. California Supreme Court Justices take your time. I’m going to work on being in the moment. OOOOMMMMMMMMMM.

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We've been waiting (forever it seems) for the California Supreme Court to issue its decision in Brinker Restaurant Corp. v. Superior Court. Based on oral argument last month, things look relatively promising for employers who've taken the position that they're only required to make meal periods available to employees (as opposed to ensuring that they actually take them).

But another issue is lurking out there and, recognizing its significance, the Court has taken the unusual step of accepting briefing on an issue after the case was argued. The issue involves how to interpret the requirement in the wage orders that "no employer shall employ any person for a work period of more than five (5) hours without a meal break of not less than 30 minutes . . . ." [Let's ignore for now the exception for work that's completed in six hours.]

Most employers and their lawyers (and commentators and just about everyone else who's addressed the issue) interpret that to mean that employees who work more than 5 hours get a meal period and employees who work more than 10 hours get a second meal period.  But an issue arose at the Brinker argument about whether an employee can ever be required to work more than five consecutive hours without a meal period.

Take the example of an employee who works from 8:30 a.m. to 5 p.m. with a 30-minute meal period from 11:30 a.m. to noon. Let's assume that the employee occasionally works 10 minutes past 5 p.m., for which the employer properly pays overtime. The Brinker plaintiffs are arguing that the employee worked a period of over 5 hours (noon to 5:10 p.m.) and is therefore entitled to a second meal period.  If the employer, like the overwhelming majority, didn't provide a second meal period in that situation, the the employee would be entitled to a one-hour penalty for each occasion when that occurred.   

This so-called "rolling 5" interpretation is the subject of the post-hearing briefing in Brinker. As reported by Ben James in Employment Law 360, the California Employment Law Council sought and obtained permission to file a brief on the issue. In doing so, it warns that "a tsunami of massive class actions will descend on California's already hard-pressed employers" if the Court adopts such an interpretation and makes it retroactive. 

The plaintiffs will also get a chance to brief the issue. Eventually, in theory, we'll get a decision. But until then, the uncertainty that affects thousands of employers and hundreds of pending cases remains.

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Less than three months ago, I was lamenting the continuing uncertainty over whether California employers may simply make meal and rest breaks available or whether they must somehow ensure that they're taken.  Even then, it had been over two years since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court.  Still, there was a glimmer of hope when an appellate court -- Hernandez v. Chipotle Mexican Grill -- issued a published decision holding that it was enough to provide the breaks (i.e. make them available).

Well, the uncertainty has increased.  The California Supreme Court has granted review in Hernandez, thereby rendering it no longer citable as precedent.  Is this surprising?  Not really.  But as I've said before, for an issue that affects so many employers, employees, and pending lawsuits, some definitive guidance would be helpful.  Look for it in the second half of 2011.

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It's been over two years since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court.  During that time, employers in California have lacked definitive guidance on whether they must simply provide nonexempt employees with their statutory meal and rest periods, or whether they must somehow ensure that the employees take them.

In the meantime, a California appellate court has waded into the swamp of uncertainty and ruled that it's enough to provide the breaks (i.e. make them available) regardless of whether employees actually take them.  In Hernandez v. Chipotle Mexican Grill, a division of the Second Appellate District affirmed a lower court order denying certification to a class of employees who claimed they did not receive their breaks.  If the standard is whether the breaks were provided, the court reasoned, then the inquiry as to why individual employees didn't take them is too individualized for class-wide treatment.

It certainly seems sensible to require employers to provide breaks, but not insist that they somehow force that they be taken.  To that extent, Hernandez v. Chipotle is a step in the right direction.  But until Brinker is decided, uncertainty on this issue persists.  When will we get such a decision?  With oral argument not even scheduled yet, that is still months away. Is it too much to hope that the state Supreme Court would act with a little more urgency to resolve an issue that can have such a great impact on millions of employees, thousands of employers, and hundreds of pending lawsuits?  

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Pending decisions from the California Supreme Court in Brinker Restaurant Corp. v. Superior Court of San Diego County and Brinkley v. Public Storage, Inc., the Division of Labor Standards Enforcement must still adjudicate Berman hearings concerning meal period claims.  Consequently, the DLSE has adopted an “HQ Memorandum” presumably to guide interim agency decisions.  The Memo makes clear that “employers are not obligated to ensure that their employees take meal periods.”  But it also imposes the so-called “5 Hour Rule” requirement:  “The first meal period provided by an employer must commence prior to the end of the fifth hour of work.”  It seems to me that these rules are in conflict.  If an employer is not obligated to “force” an employee to take a meal period, then it should not be required to “force” a meal period under specific time constraints.  Recently, we have been able to obtain agency decisions using this argument.  If you would like a copy of the decisions or to discuss strategy, send me an email. 

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