• California Supreme Court Grants Review of Brinker Restaurant Corporation v. Superior Court Case Concerning Meal Periods and Rest Breaks, While New Court of Appeal Case Adopts Brinker Analysis and Holding
  • December 3, 2008 | Author: James W. Michalski
  • Law Firm: Holland & Knight LLP - Los Angeles Office
  • In our recent newsletter, we reported that on July 22, 2008, the Court of Appeal of California, Fourth Appellate District, ruled that California statutes require California employers only to offer meal periods and rest breaks to employees – not ensure that they are taken. Brinker Restaurant Corp. v. Superior Court, No. D049331. In that decision, the Brinker court also held that employers would not be liable for off-the-clock work unless they knew or should have known employees were working off-the-clock. Finally, the Brinker court determined that because the claims of each of the employees required “individualized inquiries,” class treatment was inappropriate, and it vacated the trial court’s class certification order. This controversial case represented a potentially huge victory for California employers and appeared likely to reduce the number of meal period and rest break class action cases.

    As we expected, on October 22, 2008, the California Supreme Court decided to accept the Brinker case for review and, consequently, counsel for employers may no longer cite to or rely upon the Brinker decision. It may take the California Supreme Court a year or two to issue an opinion.

    Second Memorandum Issued

    As we noted in the newsletter article, following the Brinker decision, the California Labor Commissioner issued a memo to the staff of the California Division of Labor Standards Enforcement (DLSE) concerning the impact of Brinker. In the wake of the California Supreme Court’s grant of review of the Brinker decision, on October 22, 2008, the Labor Commissioner and her counsel issued a second memorandum on the issue of meal periods to the staff of the DLSE. The memorandum informed the staff that, as to certain issues, the DLSE will continue to construe the language of the California Labor Code and Industrial Welfare Commission’s Wage Orders (“Wage Orders”) in the same manner that the Court of Appeal did in Brinker. The DLSE will rely upon certain state and federal court decisions cited approvingly in Brinker, together with the California Labor Code’s language, which “demonstrates compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure such meal periods are actually taken.” But, notably, the DLSE memorandum did not address any of the issues raised by the employees in Brinker concerning the availability and timing of their 10-minute rest breaks or off-the-clock time. This memorandum can be accessed at http://www.dir.ca.gov/DLSE/CourtRulingsMemo-Brinke-10.23.08.pdf.

    Brinkley Court in Line With Brinker

    Subsequently, in Brinkley v. Public Storage, Inc., No. B200513, filed on October 28, 2008, the Court of Appeal of California, Second Appellate District, came to many of the same conclusions as the Brinker court. Specifically, the Brinkley court ruled that the relevant provisions of the California Labor Code and Wage Orders do not require that meal periods be provided within the first five hours of a shift. Also, the Brinkley court found that employers need only provide meal periods and need not “ensure that employees actually take such breaks.” In reaching this conclusion, the Brinkley court noted that the employer had a written policy providing for meal periods, made managers aware of the policy, advised employees at a meeting that they were required to take lunch and rest breaks, and reprimanded employees for not taking meal periods. The employer similarly showed that it had a written policy permitting employees to take rest periods, provided a copy of the policy to the plaintiff employee and advised employees at a meeting that they were required to take rest periods. And the Brinkley court ruled similarly as to rest periods, holding that the employer must make them available to employees but that “California law does not require an employer to ensure that employees take rest periods.”

    What Steps Should Employers Take Now?

    In light of these decisions, to limit the risk of rest break and meal period lawsuits by employees, employers are advised to take the following steps:

    1) review their written policies to ensure that they state that employees are provided with and expected to take appropriate rest breaks and meal periods in compliance with the California Labor Code and Wage Orders

    2) disseminate the written meal period and rest break policies to all new employees

    3) train managers on the necessity of providing rest breaks and meal periods to employees

    4) republish the policies annually and inform employees in regular meetings that they are to take the rest periods and meal breaks provided

    5) reprimand employees whom the employer knows are not taking rest breaks and meal periods

    6) document these steps and consider having employees sign an acknowledgement of receipt of these policies and instructions

    We will not know the final answers to the issues addressed in Brinker surrounding rest breaks and meal periods until the California Supreme Court issues its opinion in that case. In particular, give the Supreme Court’s grant of review in Brinker, lower courts may disagree with the Labor Commisioner and decline to follow Brinker’s reasoning until the Supreme Court decides the issue. But until the California Supreme Court issues definitive guidance on these matters, the foregoing proactive steps should help limit the risk of an employer being found liable for failing to provide rest breaks and meal periods. Holland & Knight labor & employment lawyers can assist you with developing or reviewing your policies and procedures as well as addressing any questions or concerns that you may have in the interim.