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 California Supreme Court Rules in Brinker

by Carl Borden, Assoicate Counsel, California Farm Bureau Federation

The California Supreme Court on April 12 issued its much anticipated opinion in Brinker Restaurant Corporation v. Superior Court (Hohnbaum). While most of its unanimous opinion addressed how a trial court should analyze issues in determining whether to certify a lawsuit as a class action, the Court answered these practical and vexing questions for employers and employees:

  • Must an employer merely provide a meal break to employees, or must it ensure that its employees actually take such breaks?
  • How many meal periods must be provided, and when during the workday must they be provided?
  • How much rest-period time must be authorized, and when during the workday must rest periods be authorized?

Duty to Provide Meal Periods: The Court concluded that under applicable California laws and regulations, “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Summarizing an employer’s duty in this regard, the Court said:

“The employer satisfies its obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry…. [T]he 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 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 and create liability for premium pay….”

Number and Timing of Meal Periods: The Court held “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.”

In so holding, the Court rejected the plaintiff employee’s claim that an employer must additionally provide a meal period no later than five hours after the end of each meal period. Under the rejected theory—nicknamed the “rolling five-hour requirement”–for example, an employee who took his first meal period after having worked only two hours of a nine-hour shift would be entitled to a second meal period after working no more than five hours after the first meal period. In other words, under the rejected rolling five-hour requirement, the employer would have to provide a second meal period even though the employee had worked only seven of a total nine hours on that workday.

Rest Periods: The Court held that under the pertinent order of the Industrial Welfare Commission (IWC), “[e]mployees 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.”

The Court further held that employers must “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.” In the context of an eight-hour shift, as a general matter, “one rest break should fall on either side of the meal break…. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.

What It Means For Employers: The Court’s holdings on these issues provide employers with much needed and welcome clarity of their obligations under California laws and regulations to provide employees with meal periods and rest periods. This is especially important to employers because they face substantial monetary liability for failing to provide employees with those meal periods and rest periods. Specifically, an employer must pay an employee one hour of premium pay at the employee’s regular rate for each workday on which one or more meal periods were not provided, plus one hour of pay for each workday on which one or more rest periods were not provided.

But despite the Court’s holding in Brinker that an employer needn’t insist that employees take their meal periods (just as an employer needn’t force employees to take their authorized rest periods), an employer may decide for good reason to require employees not to work during their meal periods and rest periods. Doing so removes any doubt that employees were in fact provided with those breaks and were not discouraged or impeded from taking them. Doing so thus undermines any claim by employees—or, more likely, ex-employees—that they are entitled to premium pay for having been denied those breaks.

In one especially interesting passage that may be a bit difficult for one to reconcile mentally, the Court said: “[A]ctually relieving an employee of all duty… transforms what follows into an off duty meal period, whether or not work continues.” (Italics added.) In a connected footnote, the Court stated: “If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’” The footnote concludes by noting that “hours worked” includes “all the time the employee is suffered or permitted to work, whether or not required to do so.”

Accordingly, by relieving an employee of all duty for a meal period but then allowing the employee to work during it, an employer “suffers or permits” the employee to work and thus that time is compensable as hours work. Nonetheless, the meal period is an “off duty” meal period because the employer relieved the employee of all duty and is merely allowing—as opposed to requiring—the employee to work during it.

Consistent with this passage and footnote, where an employer, despite having relieved an employee of all duty for a meal period, lets the employee work during it, the employer should record that time as an off-duty meal period while also counting the time as hours worked. A notation on the employee’s time card that the employee chose to work during the employee’s meal period should suffice.

Odd as doing so may seem, this approach is also consistent with the requirement in the Records section of the IWC orders that meal periods (other than those during which operations cease) be recorded. (An on-duty meal period meeting the requirements specified in the IWC orders should similarly be recorded, again while of course counting the time as hours worked.)

Further buttressing this recommendation is this passage in the concurring opinion in Brinker by two justices: “If an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.  This is consistent with the policy underlying the meal period recording requirement, which was inserted in the IWC’s various wage orders to permit enforcement.” Time records showing meal periods—worked through or not—will help an employer establish an affirmative defense to an employee’s claim that the employer did not provide the employee with those meal periods.

Employers of agricultural employees covered by IWC Order No. 14 are cautioned that Brinker’s holding rejecting the “rolling five-hour requirement” might not apply to that order’s unique meal-period provisions. The change in the law on which the Court based that rejection did not apply to IWC Order No. 14, and the conforming amendments made by the IWC to its other orders were not made to IWC Order No. 14. Accordingly, a court may at some point conclude that IWC Order No. 14’s meal-period provision does require an employer to authorize a meal period after each work interval of no more than five hours.

One way to comply with a rolling five-hour requirement under IWC Order No. 14 would be to authorize and permit the first meal period of a workday to occur immediately after employees have worked five hours. That way, even if employees eat a snack or meal earlier than that, the five-hour work period before a second meal period would have to be authorized and permitted will start to run at the end of the first authorized meal period–whether taken or worked through–rather than from the end of earlier snack or meal break.

Assume, for example, that Order 14 employees start a 10-hour workday at 7 am. At 9:30 am, they take a 20-minute break to rest and eat. This break would not be their meal period but would be their rest period, even though it is double the length of a rest period that must be authorized and permitted. They resume work until 12 noon–five hours into their workday. A meal period is then authorized and permitted, with employees being relieved of all duty. But as is common in agriculture, the employees choose not to take the meal period but instead work through it, with some resting for a few minutes. As discussed above, this is still their meal period and should be recorded as such in the employer’s time records, with the time being treated as compensable hours worked. At the end of the meal period–12:30 pm–the employees have worked five and one-half hours so far in the workday. They then work for another two and one-half hours – until 3 pm – when they are authorized and permitted to take a second rest period. They then return to work for another two hours–to 5 pm–when work ends for the day.

This type of schedule complies with the requirements of IWC Order No. 14 as long as employees, individually and collectively, are truly relieved of all duty for their rest periods and meal periods, with any work they do during them being of their own free will. As the Brinker Court cautioned: “[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks…. The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”