New Major Decision Holds California Meal Period, Rest Period, Off-The-Clock And "Time Shaving" Wage Claims "Not Amenable To Class Treatment"

In its long-awaited decision in Brinker Restaurant Corp. v. Superior Court (July 22, 2008), Case No. D049331, the California Court of Appeal delivered overdue but welcome news for California employers, particularly on the issue of complying with California’s unique meal period requirements. Specifically, the Court granted the employer’s petition for a writ of mandate and ordered the trial court to: (1) vacate its order granting the plaintiffs’ motion for class certification on their meal and rest period violations and off-the-clock / “time shaving” claims; and (2) enter a new order, denying plaintiffs’ motion for class certification.

A more in-depth WorkCite article on the implications of the Brinker decision for California employers will be forthcoming. However, the Court’s key holdings are as follows:

Meal Periods

• While employers cannot impede, discourage or dissuade employees from taking meal periods, employers need only provide employees with an opportunity to take such breaks – not ensure that employees actually take their meal periods.

• Employers are not required to provide a meal period for every five consecutive hours worked, but instead only for a work period of more than five hours per day. Thus, if an employee takes an “early lunch” after working only two hours, the employee is not entitled to a second meal period after seven hours of work just because he or she worked an additional five hours after the first meal period.
• Because meal periods need only be “made available” and not “ensured,” individual issues predominate and are not amenable to class treatment (based on the evidence presented to the trial court). These individual issues in Brinker included: (1) the reasons meal breaks were not taken by each employee; and (2) whether each employee’s missed or shortened meal period was because of the employee’s personal choice, a manager’s decision, or inadequate staffing that did not permit meal breaks to be taken.
• Time cards and expert statistical and survey evidence do not make meal break claims amenable to class treatment, because such evidence only purports to show when meal breaks were shortened or not taken, not why that occurred.
• Individual issues necessary to prove the affirmative defense of an employee’s waiver (i.e., deciding to forego taking a meal period) can be used to defeat class certification.
• There is no statutory requirement that the “mutual consent” necessary for a waiver of a meal period be in writing. Had the California Legislature intended such a requirement, it could and would have placed such a requirement in the meal period statute.

Rest Periods

• While employers cannot impede, discourage or dissuade employees from taking rest periods, employers need only provide employees with an opportunity to take such breaks – not ensure that employees actually take their rest periods.
• Employers need only authorize and permit rest periods for every four hours worked or major fraction thereof. In addition, such breaks need not, where impracticable, be in the middle of each work period.
• Because rest periods need only be “made available” and not “ensured,” individual issues predominate and are not amenable to class treatment (based on the evidence presented to the trial court). These individual issues in Brinker included whether: (1) employees missed rest breaks as a result of a supervisor’s coercion or the employee’s uncoerced choice to waive such breaks and continue working; and (2) employees received a full 10-minute rest period or had their break interrupted.
• Expert statistical and survey evidence does not make rest break claims amenable to class treatment, because such evidence only purports to show when rest breaks were or were not taken, not why breaks were not taken or were shortened to less than 10 uninterrupted minutes.

Working Off-The-Clock & “Time Shaving”

• While employers cannot coerce, require or compel employees to work off-the-clock, employers can only be held liable for such activity if they knew or should have known that employees were doing so.
• Off-the-clock claims are not amenable to class treatment, as individual issues predominate. In Brinker, these issues included whether: (1) any employee actually worked off-the-clock; (2) the employer forced, coerced or encouraged employees to engage in such activity; and (3) the employer knew or should have known employees were working off-the-clock.
• Likewise, “time shaving” claims are not amenable to class treatment, as individual issues predominate. In Brinker, these issues included whether: (1) a manager is authorized to adjust time cards; (2) a particular time card was adjusted; and (3) the justification given for adjusting a time card was legitimate.

For further information or help in complying with California’s complex wage and hour laws or analyzing the impact of the Brinker decision on class action wage and hour claims, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits Teams.