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

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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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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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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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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