By Teresa R. Tracy
In a closely-watched and heavily-briefed decision, the California Court of Appeal for the Fourth Appellate District issued a decision on July 22, 2008, that holds out the hope of relief from California’s onerous and costly meal and rest break class actions.
The case, Brinker Restaurant Corporation v. Superior Court, was a class action that alleged violations of California law with respect to rest and meal breaks. The Superior Court had certified the matter as a class action.
On appeal, the appellate court found that the case was improperly certified as a class action. Specifically, it concluded that
(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;
(2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
(3) employers are not required to provide a meal period for every five consecutive hours worked;
(4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken;
(5) 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) because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they were not amenable to class treatment;
(7) the off-the-clock claims were also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.
Accordingly, the appellate court ordered the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class.
The case noted that earlier decisions had reached similar – and certainly not inconsistent – conclusions. In April 2007, the California Supreme Court observed that employers must “provide” meal and rest breaks, but did not elaborate on the extent to which an employer must monitor and enforce the taking of these breaks. It also noted White v. Starbucks Corp., a published federal decision that held that “provide” only requires that employers “offer” meal breaks. In addition, it cited Brown v. Federal Express Corp., in which the federal district court rejected the plaintiffs’ argument that employers had to “ensure” that breaks were taken.
Central to the court’s reasoning in Brinker were the employer’s policies.
The written policy titled “Break and Meal Period Policy for Employees in the State of California stated: “I am entitled to a 30-minute meal period when I work a shift that is over five hours.” The policy also provided, “If I work over 3.5 hours during my shift, I understand that I am eligible for one [10-]minute rest break for each four hours that I work.” The policy also provided that an employee’s failure to follow the foregoing policies “may result in disciplinary action up to and including termination.” This policy was contained in a form that was to be signed by each employee.
The employer’s “Hourly Employee Handbook” stated: “It is your responsibility to clock in and clock out for every shift you work.. . [Y]ou may not begin working until you have clocked in. Working ‘off the clock’ for any reason is considered a violation of Company policy.” It went to state: “If you forget to clock in or out, of if you believe your time records are not recorded accurately, you must notify a Manager immediately, so the time can be accurately recorded for payroll purposes.”
For companies and attorneys grappling with class actions, the case also clearly stands for the proposition that rest and meal break claims, at least under facts such as those in Brinker, are not amenable to class certification due to the myriad of individualized issues that would have to be resolved.
It is possible that the plaintiffs will seek review by the California Supreme Court. If such a petition for review is granted, it will delay a definitive decision. However, the Supreme Court may well take the opportunity to clarify what it meant by “provide” in its earlier decision.
Advice for Employers
Employers should review and revise their policies and handbooks regarding meal and rest breaks. Indeed, one way to strengthen their position is to include language indicating that it is the supervisor’s responsibility to ensure that employees are provided with breaks, and to provide a resolution procedure for any employee who feels they are being discouraged or prevented from taking a break.
Employers may not have a basis for recouping past penalty payments made for missed breaks, but this case provides some basis for not making such payments in the future. The defensibility of such a course of action will undoubtedly be litigated. The most conservative approach will be to continue to encourage employees to take rest breaks and mandate meal breaks, thus avoiding the issue of penalty payments.
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If you would like to discuss how the Alert might affect you or your business, please contact Teresa R. Tracy at (310) 821-9000, X717 or the attorney with whom you regularly work.
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©2008 Berger Kahn, A Law Corporation. All Rights Reserved.
