The California Supreme Court recently released its long awaited decision in the class action case Brinker v. Superior Court (Hohnbaum), S166350, in which a class of approximately 60,000 restaurant employees alleged their employer failed to provide meal and rest periods as required under California law. Class action litigation has increased exponentially in California, with meal and rest period cases playing a large role in that increase. The Brinker decision provides clarification regarding issues of scope and timing for meal and rest periods required under California law, and provides further guidance regarding certification of classes for wage and hour claims.
In a long anticipated ruling, the Court held, with regard to meal periods, that employers need not ensure that employees take 30 minute uninterrupted meal periods, but employers must provide such meal periods, in which the employees are relieved of all duty. Under Brinker, an employer has no responsibility to police such meal breaks to ensure that no work is done. An employer may be liable, however, if they actually know or should know that an employee is not taking the meal period, or they create incentives to coerce or discourage employees from taking their meal period.
The Court also provided some clarification with regard to the timing of meal periods. Plaintiffs argued that California Labor Code Section 512 and California’s Industrial Welfare Commission Wage Orders should be interpreted to require meal periods on a “rolling” basis. The Court, however, disagreed and found that a meal period must be provided if an employee works a shift over five hours (with the meal period starting no later than the 5th hour), and that a second meal period must be provided no later than the 10th hour of work. The Court also noted that a first meal period may be waived by mutual consent if the employee works no more than 6 hours on the day in question. A second meal period may be waived if the first meal period is not waived and the employee does not work more than 12 hours on the day in question.
Oral arguments can be viewed here:
The Court also held that employees are entitled to rest periods of 10 minutes “for each four hours of work or major fraction thereof.” In this context, a “major fraction” means a fraction greater than one half. No rest period is required for employees who work a shift of less than 3 ½ hours. Michael Kelly, on Squire Sanders’ blog, Employment Law Worldview, provides a chart which outlines the new rest break requirements as follows:
Under the new Brinker standard, employees are entitled to rest breaks as follows:
|Hours Worked||Rest Periods|
|0 to less than 3.5 hours||None|
|3.5 up to 6 hours||1|
|More than 6 up to 10 hours||2|
|More than 10 up to 14 hours||3|
|More than 14 up to 18 hours||4|
The Court did not provide similar guidance regarding the timing of rest periods, noting that the Wage Orders only require that rest breaks fall in the middle of work periods “insofar as practicable.” As such, employers are advised to make good faith efforts to provide rest breaks in the middle of a work period, but practicality provides flexibility for the timing of such breaks. It is important to note that for rest periods, there is no “relieve of all duty” standard.
It is important that California employers review their current policies and ensure that they are current and comply with the above requirements. It is also important that employers review time sheets to ensure breaks are taken and that incentives are not created to discourage meal periods. As any employer without a clearly communicated policy is vulnerable to such class action litigation, it is also advisable to inform employees directly of such policies. Employers should also consider the following issues in light of Brinker when reviewing their policies:
- What record keeping will be used to provide proof of meal periods and rest breaks? And how often will these records be reviewed to ensure compliance?
- Establish what constitutes “relieve of all duty” for purposes of a meal period.
- Establish a policy for supervisors to ensure employees are not discouraged from taking breaks or coerced.
More information on Brinker and its impact can be found on LXBN.