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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In the few weeks since the decision in Brinker v. Superior Court, two court decisions that we know of have invoked the elements of Brinker in their discussions.  In the first case, the court in Schulz v. Qualxserve, LLC granted class certification to a group of field technicians who service and repair computers and are paid on a piece-rate basis.  Plaintiffs had made a variety of wage and hour claims, including missed meal and rest periods.  The employer argued that there was no evidence that it deprived employees of meal and rest periods as a general policy, and therefore class certification of these claims should be denied because individual questions would predominate over a common issue. 

While acknowledging that the Brinker decision held that employers are not required to ensure that employees take meal and rest breaks,  the Court reiterated the holding that employers are required to ensure that employees are relieved of all duties.  Because the plaintiffs were challenging the employers common general policy of not relieving employees of all duties during rest and meal periods, they met the standard for showing that common issues would predominate for these claims, and the Court certified the class.  Importantly, the Court noted that in Brinker class certification for the rest period claims was upheld because plaintiffs had challenged a uniform policy, similar to this case. 

In the second case, Benton v. Taninco, the Court denied Plaintiffs' motion for class certification in a suit for misclassification and missed meal and rest periods.  The Court stated that Plaintiffs were unable to establish uniformity of policies or circumstances at the individual work locations, citing statements from the court in Brinker regarding the analysis of whether common issues predominate in determining liability.  Additionally, class certification was inappropriate in this case because, again citing Brinker, some of the employees had been provided all that was necessary in terms of proper meal and rest breaks: the chance to take them. 

So, what do these cases teach us about the effects of Brinker?  First, class certification of meal and rest periods will be difficult where the employer can show that some of the employees were provided their breaks as required under Brinker.  Second, it certainly seems that Brinker will be cited to support class certification of meal and rest period claims when there are common policies or practices that  interfere with employees being able to take a "bona fide" meal or rest period. 

While this has been said many times already since Brinker came out, employers should examine their policies and practices to be sure they mirror the requirements stated in that decision.  Scheduling practices should be re-evaluated if there is a possibility that they could be seen as preventing an employee from being relieved of all duties during the meal period.  Plaintiffs in missed meal and rest period claims will be more closely scrutinizing the workflow and scheduling to try to point out general issues that support class certification. 

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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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Now that we all have read about the Brinker ruling, and breathed our collective sigh of relief, it is time to get into the weeds on some very practical issues impacting California employers.

One such issue is the timing of the meal break. The ruling clearly states that the first meal break must start “no later than the end of an employee’s 5th hour of work.” Sounds pretty clear, but is it? Perhaps not if you are mathematically challenged like me.

If a shift starts at 9:00 am, the end of the 5th hour is 1:59 pm. Why? Because you have to count 9:00 am as the first hour. That means that 10 am is the 2nd hour, 11 am is the 3rd hour, noon is the 4th hour, 1 pm is the 5th hour, and 2 pm is the 6th hour. So the employee’s break must commence no later 2 pm, the start of the employee’s 6th hour.

Under Brinker, “early lunching” is okay. So while the meal break must commence by the end of the 5th hour, it no longer must be taken between the 3rd and 5th hour. That concept was based on the “rolling 5-hour rule” now rejected by the Court. Under the rolling 5-hour rule no work period could be more than 5 hours without a meal break, and the timing of the first meal break dictated the timing of the second meal break. Arising from this rule came the 3rd and 5th hour concept, because a meal break between the 3rd and the 5th hour of an 8 hour shift meant that the employee never worked for more than 5 hours without a meal break. So, while the 3rd to 5th hour rule still may be a helpful standard, it is not required.

For example, a restaurant with servers working 4 pm to midnight can provide them with an early meal break at 5 pm before the start of service, instead of between 7 and 9 pm, right at the busiest time.

More to come on other practical aspects of Brinker. Stay tuned.
 

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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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Thanks to Kent Bradbury for the following post:

The California Supreme Court has finally scheduled oral arguments in the case of Brinker v. Hohnbaum for November 8th.  For those who aren't aware of what the Brinker case is all about, the key issue is the employer's duty in providing meal periods.  The debate has raged for several years now as to whether the employer need only make available the opportunity for the employee to take their meal period, or whether the employer has an affirmative duty to ensure the employee gets to lunch.  It will all come down to how the Court interprets the word provide in the statute.  Employers and plaintiff's counsel alike have been waiting for three years for clarification on this issue, as various courts, and even the DLSE, have taken different stances.  Given the date of oral arguments, a decision could come as early as next February. 

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