The California Supreme Court’s Long-Awaited Brinker Decision – What Does the Split-the-Baby Approach Tell Us about Meal and Rest Periods in California

Two hours ago, the Supreme Court finally provided the guidance every employer and non-exempt employee in California has been awaiting: what do employers have to do to comply with California’s stringent meal and rest period requirements? See Brinker Restaurant Corp. v. Superior Court (Hohnbaum), S166350 http://www.bryanschwartzlaw.com/Brinker_4-14-12.pdf

Here is what the answer seems to be:

1) Employers do not have to police employees during their meal periods to make sure they are not doing any work. However, employers also cannot control employees’ time or find subtle or not-so-subtle ways of getting employees to work during meal periods. The touchstone for meal periods is the latter: are employees truly relieved of all duty, and relieved of the employer’s control, for an uninterrupted, 30-minute period? (See Brinker, Slip Op. at p. 30, citing DLSE Opinion Letter No. 1991.06.03 (June 3, 1991) “The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.”). As the Supreme Court explained, “Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”Brinker, Slip Op. at p. 31. If not, the employer owes a one-hour premium, under Cal. Lab. §226.7.

Bryan Schwartz Law’s amicus brief to the Supreme Court on behalf of the California Employment Lawyers Association and the Consumer Attorneys of California in this matter had urged the Court to adopt essentially a strict liability standard: that employers must ensure that no work be performed, or else pay premiums. The Supreme Court declined this invitation. The Court reasoned, “[T]he obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time. See Morillion v. Royal Packing Co. (2000) [22 Cal.4th 575, 584-585] (explaining that voluntary work may occur while not subject to an employer’s control, and its cessation may require the reassertion of employer control).

Again, control is the critical factor. The Supreme Court’s decision certainly would prevent an employee from, for example, going out to lunch, calling into his/her work voicemail without the employer’s knowledge or direction, and then saying “Gotcha!” and claiming an hour meal premium because he/she worked during lunch.

On the other hand, Brinker embracing the “provide” standard – because of all the discussion on cessation of work and relinquishing of control – does not appear to be a real victory for employers, who may have hoped the decision would put an end to meal period litigation. It won’t. If you are an employee, and your employer puts restrictions on what you can do with your meal period, or pushes you to get work done in a way that makes you work through lunch, then you still may assert meal period claims. You must have a “reasonable opportunity” to take your meal period, that is not impeded or discouraged or controlled by the employer. See Brinker, Slip Op. at p. 36.

PS – if the employer relinquishes control, and an employee chooses to work – with the employer’s knowledge – then the employer must still pay straight time wages for the time worked, but need not pay an additional premium. See Brinker, Slip Op. at p. 35 n. 19. Among other practices, auto-deduct meal periods - where an employer subtracts 30 minutes a day from workers’ timesheets, but knows that employees tend to work through lunch, will seemingly remain unlawful.

2) Employers must provide a meal period by the end of five hours’ work, and another at the end of ten hours’ work. The employee had argued that the second meal period needed to be five hours after the first meal period but the Supreme Court rejected this timing requirement.

3) Employers must provide a ten-minute rest period if employees work over 3.5 hours, and must provide another if employees work over six hours. As far as the timing of the rest period, it should be toward the middle of each four-hour block of work, to the extent practicable – but there will not be much opportunity for asserting claims based on rest break timing, if the employer is giving employees two, ten-minute breaks in an eight-hour shift.

4) For class actions, the Supreme Court rejected the extra layer of factual analysis that the Court of Appeal was requiring, basically saying that if a court needs to look at the facts to know if a particular element is met (e.g., deciding if common issues predominate by seeing if the same policy applied to everyone) then looking at the facts of the case is appropriate – otherwise, not.

In sum, neither plaintiffs’ or defense lawyers can claim a total victory in Brinker, but certainly employees and their advocates live to fight another day, to enforce workers’ important rights to take their breaks and meal periods.

If you have meal and rest period claims or questions, contact Bryan Schwartz Law.

DISCLAIMER: Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement signed with Bryan Schwartz Law to be a client of the firm or this author.