California Supreme Court Primarily Sides With Employers In Historic Meal And Rest Period Decision

April 19, 2012

Today, the California Supreme Court issued its long-anticipated decision in the matter of Brinker v. Superior Court, a landmark case in California's wage and hour history. Although analysts will doubtless wrestle with the implications of the opinion (written by Justice Werdegar and joined by Justices Cantil-Sakauye, Kennard, Baxter, Chin, Corrigan, and Liu) in the days and weeks to come, the opinion has settled a few long-standing questions in what appears to be a near-total victory for California employers. Here are the key holdings.

Rest Periods

Employees are entitled to 10 minutes of rest for shifts from 3.5 to 6 hours in length, 20 minutes for shifts of more than 6 and up to 10 hours and 30 minutes for shifts of more than 10 hours up to 14 hours.

The wage orders require employers to "authorize and permit" rest periods at the rate of "ten (10) minutes net rest per four (4) hours [worked] or major fraction thereof." The Court held that the term "major fraction" in the rest period requirement refers to work period lengths of two hours or more, not the 3.5 hours advocated by the employer. Clarifying its interpretation, the Court held that "[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 rejected the employees' contention that rest periods must be provided before meal periods. Instead, the Court held that employers are required to make a "good faith effort" to provide rest periods in the middle of work periods, but "may deviate from that preferred course where practical conditions render it infeasible." In reversing the court of appeal and upholding certification of the Rest Break subclass, the Court identified Brinker's common policy, which failed to give effect to the "major fraction" language of the wage order. This decision is likely unique to Brinker, but employers should review their rest period policies in light of this clarification of the law.

Meal Periods

An employer's duty is to provide a meal period to its employees. The obligation is satisfied if the employer 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.

Must employers force employees to take meal periods, or can they simply make meal periods available to employees, leaving it to the employee's discretion whether to take a meal break?

The Supreme Court held that employers "must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work." In so holding, the Court explicitly rejected the employees' contention that the employer must "ensure" that no work is done. In its footnote 19, the Court explained that premium pay is not owed if an employer relieves an employee of all duties but "knew or reasonably should have known that the worker was working through the authorized meal period." Instead, in that instance, only straight-time pay would be owed for the hours worked. The meal period premium is only owed if the employer "refuses to relinquish control over employees during an owed meal period." As a result, "employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate…liability."

The Court did caution employers against applying informal pressures that would make it difficult to take a meal period, for example, scheduling employees in a way that would make it difficult to take breaks or enforcing an "anti-meal-break policy…through 'ridicule' or 'reprimand.'"

Although its decision does leave open the question of what will suffice to "relieve employees of all duty," a question the Court acknowledges may vary from industry to industry, the Court has explicitly renounced the strict liability scheme that California employers have operated under for years.

Meal Period Timing and The So-Called "Rolling 5-Hour Rule"

There is NO Rolling 5-hour rule. Employers must 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.

The "rolling 5" question has long plagued employers – does an employer need to provide a meal period for each five hours work period within the total shift, or can the employer engage in a practice known as "early lunching," in which the employer provides a meal period early in the shift and employees work the remaining six or seven hours without another meal period?

The Supreme Court held that a meal period must be provided during the first five hours of the shift, but rejected the employees' claim that an employer must provide a meal period for each five hour period of work within a shift. Second meal periods must be provided no later than the start of the 11th hour of work. In so holding, the Court upheld the "early lunching" practice and abandoned the cumbersome "rolling 5" rule advocated by the Plaintiff's bar.

Off-the-Clock Work

The off-the-clock work class could not be certified where there was no systemic or common policy requiring off-the-clock work.

In deciding whether the employees' off-the-clock claims were amenable to class treatment, the Court upheld the court of appeal decision vacating certification. The Court held that, in light of Brinker's formal policy disavowing off-the-clock work and the lack of evidence demonstrating a systematic or common policy requiring off-the-clock work, no class could be certified. As a result, it appears future Plaintiffs will have an uphill battle in certifying off-the-clock claims, needing to convince a court that "substantial evidence…points to a uniform, companywide policy" of encouraging off-the-clock work before a class can be certified.

Retroactivity

Although the Court appeared to wrestle with the question of whether its ruling would be retroactive, the ruling contains scant reference to its retroactive effect, containing only a single sentence that the ruling constitutes a "clarification of the law." The ruling therefore has retroactive effect and applies to each and every currently pending meal period case.

Certification of Meal Period Class Actions

Significantly, in a concurring opinion, Justices Werdegar and Liu offered "guidance" regarding certification of meal break claims. In it they opine that the question of why a given meal period was missed does not render a class "categorically uncertifiable." That is, if an employer's records show an employee did not clock out for a meal period, a rebuttable presumption arises that the employee was not relieved of duty. The employer's assertion that the employee was relieved of all duties remains an affirmative defense, and whether a class can be certified is an inquiry unique to each case.

By: Lois M. Kosch and Lisa A. Hill