“While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.”
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WAGE AND HOUR UPDATE
California Appellate Court
Fixes Meal and Rest Period Rules
But Employers Might Wait
To Change HR Practices
By Christopher W. Olmsted
In California, what is the employer’s obligation with respect to employee meal and rest periods? Must an employer force its employees to take these breaks, or is it enough to make them available for employees who are interested in taking them?
An incorrect answer can be expensive. California courts have seen a marked increase in employee class actions alleging meal and rest period violations. Employees seek an extra hour of pay for each day that they miss a meal period or a break, along with miscellaneous penalties, attorney fees, and interest, going back three or four years.
A San Diego case titled Brinker v. Superior Court has given an answer that favors employers. But employers may not want to change personnel practices too soon.
Here’s what happened:
Brinker operates 137 restaurants in California, including Chili's Grill & Bar, Romano's Macaroni Grill, and Maggiano's Little Italy. Its employees filed a class action lawsuit, alleging (1) violations of rest period rules; (2) violations of meal period rules; and (3) that employees were forced to work off the clock or that managers shaved time off the time records.
After much legal wrangling, the trial court ruled that the lawsuit could be “certified” as a class action. That is, the employees could sue as one group, rather than each employee individually. Brinker appealed, and our local Fourth District reversed the trial court ruling.
The appellate court’s ruling included the following major points:
(1) Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.
(2) Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.
(3) Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.
(4) Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.
(5) Liability For Known Off-Clock Work. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.
(6) Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.
What the Court’s Ruling Means For Rest Periods
The Basic Rule:
The court reviewed the basic rules regarding breaks. No surprises here.
Employees are entitled to a ten minute break for each 4 hour period worked. (See California Code of Regulations, title 8, section 11050, subdivision 12(A))
Employees who work at least 3 ½ hours in a day are entitled to a break. Employees who work less than 3 ½ hours in a day are not entitled to a break.
Under what circumstances is an employee entitled to a second rest break?
If employees work a second four hour work period in a shift (e.g. the standard 8 hour shift) then the employee is entitled to take a break in the second work period.
Here is where the court clarified the law: As with the first four hour period, the employee is not entitled to the 10 minute break unless he or she works at least 3 ½ hours during that period. For example, if the employee works a 6 ½ hour shift, she will be entitled to one break for the first four hours, but no break for the last 2 ½ hours, because she did not work at least 3 ½ hours in the second work period.
What are the rules regarding timing of rest breaks?
As to when the break should be taken, the court noted that breaks should be in the middle of each work period if practicable. However, mid-work period breaks may not be practicable. The regulation “is clearly intended to provide employers with some discretion to not have rest periods in the middle of a work period if, because of the nature of the work or the circumstances of a particular employee, it is not ‘practicable,’ wrote the court.
The court found this likely to be so in the restaurant industry. “This discretion is of particular importance for jobs, such as in the restaurant industry, that require flexibility in scheduling breaks because the middle of a work period is often during a mealtime rush, when an employee might not want to take a rest break in order to maximize tips and provide optimum service to restaurant patrons. As long as employers make rest breaks available to employees, and strive, where practicable, to schedule them in the middle of the first four-hour work period, employers are in compliance with [the rest period regulation].”
What the Court’s Ruling Means for Meal Periods
Employee’s Allegations
It is helpful to start with an understanding of what practices the employees alleged were unlawful. The Brinker employees alleged that the company violated meal period rules in two ways:
(1) Rolling Five Hours and Early Lunching. The employees argued that Brinker violated meal period rules by failing to provide meal periods on a rolling five hour basis. That is, the employees argued that at no time must a five hour span pass without the employee taking a meal period at some point during that span. The employees objected to Brinker’s practice of “early lunching,” under which Brinker allegedly requires its hourly employees to take their meal periods soon after they arrive for their shifts, usually within the first hour, and then requires them to work in excess of five hours, and sometimes more than nine hours straight, without an additional meal period.
(2) Forced Meal Breaks. The employees argued that unless Brinker forced employees to take a meal break, it violated California law.
The appellate court rejected both of these claims.
Early/Late Lunching OK
The court examined Labor Code Section 512(a) and determined that it did not require meal periods on a “rolling” five hour basis. The Section provides for meal periods where the employee works more than five hours per day.” Thus, it is permissible for employees to work longer than a five hour consecutive span without a meal period, as long as the employer provides a meal period at some time during the shift.
“Early lunching” is permissible, as would be, we assume, “late lunching.”
“Providing” Meals Is Enough
The court next considered whether California's Labor Code imposes on employers a duty to not only provide uninterrupted meal periods, but to further force employees to take their meal periods and to police their compliance regardless of the reason proffered by the employee for not wanting a meal period and even against the employee's will.
The answer is: No. The Labor Code requires employers to “provide” meal periods, not force them to happen.
To reach this conclusion, the court analyzed the text of Labor Code Section 512(a). Then it resorted to the dictionary. “The term ‘provide’ is defined in Merriam-Webster's Collegiate Dictionary as ‘to supply or make available,’ observed the court. “Thus, from the plain language of section 512(a), meal periods need only be made available, not ensured, as plaintiffs claim.”
Any other conclusion would place impossible burdens on the employer. “Public policy does not support the notion that meal breaks must be ensured,” wrote the court. “If this were the case,” reasoned the court, “employers would be forced to police their employees and force them to take meal breaks. With thousands of employees working multiple shifts, this would be an impossible task. If they were unable to do so, employers would have to pay an extra hour of pay any time an employee voluntarily chose not to take a meal period, or to take a shortened one.”
In short, the Brinker court concluded that the employer need only make meal periods available; but employees can decide whether or not to actually take the break. In order to sue for a meal period violation, the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason.
The Catch
There is always a catch. Here it is: while an employer need only “provide” a meal or rest period to an employee, the word “provide” leaves room for debate. Exactly what must an employer do to meet this standard? An employee can still argue that the employer did not do enough to make the meal or rest period a real option. Where there is room for debate, enter the lawsuits.
The Brinker decision hints at such possibilities. The court looked to a prior case called Cicairos v. Summit Logistics, Inc., where the employer failed to provide meal periods. The case involved truck drivers who sued their employer, alleging that they were deprived of meal periods during their busy delivery schedules. Unlike Brinker, in that case, another California appellate court upheld class certification; that is, the employees won. It is notable that Summit Logistics management did not outright disallow meal periods. The court found that by implication, it discouraged meal periods, which was the same as not providing them. The court considered the following evidence:
Not scheduled. The trucking company did not schedule meal periods for the drivers. The implication was that if it did not schedule meal periods, it did not freely provide them.
Not recorded. The truck drivers used a time-tracking computer system to record their daily activities. But the company did not program an activity code in the system for meal periods. The implication was that the company did not want the drivers to take meal periods.
Management Awareness. Supervisors knew that drivers were not taking duty free lunch periods. They didn’t encourage drivers to take the time off.
Management pressure. Drivers testified that the company’s management pressured drivers to make more than one trip daily, making it harder to stop for lunch.
Under those facts, the Cicairos court found that the company failed to establish that it “provided” the drivers with their required meal periods. The defendant in Cicairos knew that employees were driving while eating and did not take steps to address the situation. This, in combination with management policies, effectively deprived the drivers of their breaks.
The Brinker court also looked at a federal district court case called Perez v. Safety-Kleen Systems. In Perez, similar issues arose regarding whether or not the employer “provided” meal breaks.
The company had no personnel policy for meal breaks.
The workers were on call at all times and were required to carry a company cell phone to maintain constant contact with the branch.
They were required to complete a detailed log each day which specifically stated they were on duty from the time they arrived at the branch until going home at the end of the day.
The bottom line: Given the possibility that an employee could argue that you did something less than “provide” a meal period, the safest approach would be to maintain current mandatory meal and rest period policies, rather than liberalize the policy in response to the Brinker decision.
Many employers may decide to maintain the status quo for the time being. The appellate court decision in Brinker is far from the final word on the topic. The employees in the Brinker case may appeal the matter to the California Supreme Court. A final decision could be over a year away. Of course, the California Supreme Court may not be the last word either. The California legislature is not shy about making new laws to overrule employer-friendly court decisions. Until the dust settles, the conservative approach is to maintain a strict meal and rest period policy.
We will offer practical tips on implementing meal and rest period policies under Brinker after we hear from the California Supreme Court. There are many ways in which company policies and practices could create liability under the Brinker paradigm. Companies inclined to react now ought to seek legal advice before proceeding.
More Legal Update articles.
Download entire August Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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