April 19, 2012
On April 12, 2012, the California Supreme Court issued a landmark decision in Brinker Restaurant Corp. v. Superior Court, in which the Court provided long-awaited clarification regarding employers’ obligations to provide meal and rest breaks to non-exempt employees. In Brinker, current and former restaurant employees sued for various alleged wage and hour violations, including missed and/or untimely meal and rest breaks.
Although the decision is important for many reasons, one of the most anticipated issues addressed in Brinker was whether California employers must merely make a meal period “available” to employees, or “ensure” that employees actually stop working and take a break. While the Court has provided some clarity on this issue and breaks generally, as discussed below, the Brinker decision still leaves considerable room for litigation.
Requirement to “Make Available” Versus “Ensure” Meal Breaks
On the main issue of whether an employer must merely make an uninterrupted, duty-free meal period available to employees or ensure that employees actually take such breaks, the California Supreme Court held that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” If an employee chooses to continue to work while on his or her meal break (or skip it altogether), the employer must pay the employee his or her regular wages for that time (if the employer knows or should know the employee is performing work). However, the employer will not be liable for the one hour of premium pay that otherwise attaches as a penalty when an employer does not provide a meal break. As the Court stated, California employers are not “obligated to police meal breaks and ensure no work is done.”
Unfortunately, the Court’s decision does not eliminate all legal controversy regarding California meal periods. If an employer forces or requires a California employee to skip their meal break, then it must pay the one-hour premium, plus (1) any straight-time wages for the time worked during the meal break, and (2) any overtime if working during the meal break ultimately causes the employee to work more than eight hours in the day or 40 hours in the week. Further, the Court made clear that an employer cannot “impede or discourage” employees from taking meal breaks. Thus, while the Brinker decision provides some measure of relief for employers, meal breaks will nevertheless continue to be a source of litigation, as employees doubtless will argue that they were forced to skip their meal break because of myriad types of alleged pressure from the employer, understaffing and other factors.
Timing of Meal Breaks
In addition to addressing the scope of an employer’s obligations to provide meal breaks, the Court also addressed whether California employees are entitled to a meal break whenever they work five consecutive hours (the so-called “rolling 5” requirement). The plaintiffs in Brinker claimed that they were forced to take their meal period almost immediately upon beginning their shift, and therefore were entitled to a second meal break five hours after completing their first meal break, even though the total number of hours they worked would not otherwise entitle them to a second meal period (i.e., less than 10 hours).
Contrary to what many observers predicted, the Court declined to impose a “rolling 5” requirement that the plaintiffs had urged. Instead, the Court held that the first meal break must take place no later than the end of an employee’s fifth hour of work, and a second meal break must be provided no later than the end of an employee’s 10th hour of work. There is no obligation that an employer provide a meal break to employees every five hours.
The Brinker plaintiffs also attacked the employer’s companywide policy that employees who worked at least three and one-half hours are provided with one 10-minute rest period for each four hours that they worked. Under this policy, if an employee worked seven hours, the employee would receive only one 10-minute rest period. Only if the employee worked eight hours would they receive two 10-minute rest periods. The plaintiffs argued that, under California law, they were entitled to two 10-minute rest periods for all shifts longer than six hours up to 10 hours, and then a third 10-minute rest period if they worked a shift longer than 10 hours up to 14 hours. The plaintiffs also argued that the rest periods must be provided during the middle of their shift and before any meal period.
The Court’s ruling in Brinker addressed two questions with respect to rest breaks: (1) the number of rest breaks that must be authorized, and (2) the timing of any required rest periods.
Number of Rest Breaks
After engaging in an exhaustive analysis of the statutory language, the California Supreme Court provided a bright-line rule: employees are entitled to one 10-minute paid rest break for shifts that last between three-and-one-half to six hours in length; two 10-minute paid breaks for shifts of more than six hours up to 10 hours; and three 10-minute rest breaks for shifts of more than 10 hours up to 14 hours (and so on).
Timing of Rest Breaks
The Brinker plaintiffs claimed that the employer often required them to take meal periods shortly after they started their shift, so that they could then work the next four or five hours of their shift without interruption. The plaintiffs argued that they should be entitled to take a rest break before taking any meal period. The Court, however, rejected that argument and declined to find that the employer’s practice was per se improper. Instead, the Court adopted a more pragmatic approach, holding that employers must make a good faith effort to provide rest breaks “in the middle of each work period [for California employees], but may deviate from that preferred course where practical considerations render it infeasible.” Subject to this obligation to attempt in good faith to provide rest breaks in the middle of the work period, the Court held that there is no per se obligation to provide a rest break before a meal period.
While this holding is generally favorable for employers, the Court did not provide any insight as to what “practical considerations” might be legally sufficient to justify a departure from the “middle of each work period” standard. Thus, employers who do not permit rest periods in the middle of a California employee’s shift do so at their peril, as they may face litigation attempting to justify the “practical considerations” behind such action.
While in general the Brinker decision is a positive development for employers and provides some much needed guidance on complying with California’s meal and rest break requirements, it will not eliminate all litigation over meal and rest breaks. In light of the guidance provided, employers should review and, as needed, update their break policies and procedures to ensure compliance with California law both in terms of stated policy and actual practice. The decision also provides a good opportunity for employers to remind all California-based employees about applicable break expectations to confirm that the employer-sanctioned break practices match what is required to occur under company policy and California law.
For additional information regarding the Brinker case and its impact on operations with employees in California, please contact the authors or any other member of the McGuireWoods Labor and Employment Group.