In one of the most significant wage and hour cases of our time, and an apparent victory for California employers, today the California Supreme Court issued its long-awaited opinion in Brinker Restaurant Corp v. Superior Court, Case S166350 (April 12, 2012), ruling that while employers must make meal and rest breaks available to nonexempt employees,1 employers are not required to ensure that such employees take their breaks. The Court further decided that employers must provide meal breaks to employees with a first meal period no later than the end of the fifth hour of work, and a second meal period no later than the end of the employee's tenth hour of work; in other words, employers need not provide a second meal period within five hours after the first meal period.
Workers at Brinker's Chili's and Romano's Macaroni Grill restaurants claimed that managers forced them to waive breaks by failing to provide for adequate staffing or scheduling at the restaurants. Plaintiffs asserted Brinker had further violated the meal break rules with its practice of "early lunching," forcing employees to take meal breaks at the start of a shift, and then to work five to nine hours without another meal break. The trial court concluded that the claims could move forward as class action claims. The appellate court reversed, holding that the class certification order was in error and should be vacated, as the class action treatment was improper with so many individualized questions regarding each employee's history of breaks. The appellate court also concluded that employers need only provide, not ensure, that meal and rest periods are taken, although employers cannot impede or otherwise discourage employees from taking breaks.
California Supreme Court Holding
The Supreme Court agreed to review the appellate decision on October 22, 2008, and it published its decision April 12, 2012. The Court was tasked with clarifying and confirming, among other things, the extent of an employer's obligation under Labor Code section 512(a) and the wage orders.
"Providing" Meal Breaks: The first issue decided by the Supreme Court was whether employers must merely allow or make meal breaks available, or whether employers have an affirmative duty to ensure that employees take meal breaks. The Court ruled that employers do not have an affirmative obligation to make sure employees take their meal breaks. Rather, employers must make the meal break available by allowing or providing the break no later than the fifth hour of work, relieving employees of all duties, and permitting them a reasonable opportunity to take the uninterrupted 30-minute meal break. Once this is accomplished, employers have met their legal obligations. The Court stated:
"An employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control [over activities] satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations. . . . "
A Meal Break Every Five Hours: The "rolling 5" issue in Brinker addressed whether meal breaks must be provided every five (5) hours on a rolling basis, or whether the practice of "early lunching" is allowable. California law requires that employers provide nonexempt employees a 30-minute off-duty meal break whenever they work five hours or more, and another 30-minute meal break if work shifts exceed 10 hours. The Brinker plaintiffs contended that if they were forced to take a meal break early in the shift, they would then be entitled to another meal break five hours after returning to work from the first meal break.
The Court disagreed with the plaintiffs on this issue, ruling that employers are required to provide a second meal period no later than the end of the employee's tenth hour of work. The Court stated that the intent "was not to impose a different meal period requirement then that spelled out in [the law]; specifically, it did not intend to require employers to provide employees a second meal period no more than five hours after a first meal period." Under the law, "a first meal period is guaranteed after five hours of work, while a second meal period is required only after 10 hours of work." The law imposes no timing requirements as to when the meal break must be provided within each five hour period. It is important to note that if employees decide to work through their meal break, employers could potentially run afoul of the Fair Labor Standards Act and California wage law if the employees are not paid for their work time.
Rest Breaks. The Court addressed the rate and timing of paid rest breaks. Wage Order 5 provides that an employee is entitled to 10 minutes rest for each four hours worked "or major fraction thereof." The Court determined that a major fraction means greater than one-half. Thus, an employee who works six hours is only entitled to one 10-minute paid rest break because the overage or excess above four hours is only half of a four hour block. An employee who works six and a half hours would be entitled to 20 minutes – 10 minutes attributable to the first four hours worked and an additional 10 minutes attributable to the additional two and a half hours worked, which is more than 50 percent of a four hour block. Providing guidance, the Court stated the general rule that employees "would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hour up to 10 hours, and so on."
However, express language in the Wage Order at issue (Wage Order 5) provided that employees working shifts over two hours but under three and a half hours need not be permitted a rest period at all. Therefore, the general rule must be modified to give effect to this exclusion, and the Court held that under Wage Order 5, nonexempt employees "are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on." Because of the exclusionary language, a nonexempt employee must cross the threshold of three and a half hours worked to be entitled to any paid rest break under Wage Order 5.
The plaintiffs in the case asserted that employers had to provide a rest break before any meal period. The Court disagreed. Employers' primary obligation in regards to timing is "to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible."
Class Action Treatment. The Court found that based on the particular facts of the Brinker case, the rest break subclass would be certified as a class, mainly because Brinker had a common, uniform rest break policy that authorized breaks only for each full four hours worked, arguably contrary to the legal requirement outlined above. The Court also ruled that the issue of class treatment for the meal break subclass would be sent back to the trial court for reconsideration in light of its clarification of the legal issues presented. The Court denied class treatment of the proposed subclass of workers who allegedly worked "off the clock" as the allegations required individual analysis that was not consistent with class treatment.
What This Means for Employers
The most notable aspect of the Brinker decision is that the requirement to "provide" meal breaks now definitively means to allow and permit them, and to structure schedules and shifts in such a way that uninterrupted breaks are available after five hours of work. However, employers need not police employees and force them to take their meal breaks at the designated times, or to prohibit them from engaging in work duties during their meal breaks.
This is a significant ruling for California employers. While it does not negate employers' obligations to provide the required breaks in the manner outlined above, it certainly eases the burden on employers by confirming, finally, that employers need not "ensure" its policies and practices regarding meal breaks are being followed by employees.
This ruling will undoubtedly have a tremendous impact – in favor of employers – on the wage and hour lawsuits and class actions currently pending against employers across the state. Employers may want to have legal counsel review their meal break policies to ensure compliance with the "rolling 5" and the rest break rule in particular, as it may pose a challenge in many workplaces.
Upcoming Webinar to Discuss the Impact of Brinker
Duane Morris LLP will be hosting a Webinar on Tuesday, April 17, 2012, at 10:00 a.m. PST, to evaluate the decision and its impacts on employers with workers in California. To reserve a spot, register online here.
For Further Information
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
The court's ruling applies to nonexempt employees. Employees paid hourly are nonexempt, but salaried workers may be nonexempt as well, depending upon the nature of their job duties.