July 25, 2008

On July 22, 2008, the California Court of Appeal issued a published decision in Brinker Restaurant Corporation v. Superior Court of San Diego County, holding that while California employers must make timely meal periods available to employees and may not impede, discourage or dissuade employees from taking meal periods, employers are not obligated to police their workforce to ensure that employees take meal periods. The Court held that the determination whether employees were provided with an opportunity to take timely meal periods, under the facts presented, would require an individualized analysis into the circumstances surrounding each alleged missed or late meal period and accordingly reversed the trial court's order certifying a meal period class. Governor Arnold Schwarzenegger issued a statement late Tuesday hailing the Brinker ruling: "[This] decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

Plaintiffs will likely seek review in the California Supreme Court, but if the Brinker decision stands, it will have important implications for employers currently facing meal period class actions and for employers drafting meal period policies.

The Brinker Decision

The plaintiff filed a class action lawsuit against Brinker Restaurant Corporation on behalf of all nonexempt employees in Brinker-owned restaurants alleging that Brinker failed to provide meal and rest breaks, and also claimed that the company required them to work "off the clock" during meal periods.

The trial court held that the question whether meal period laws only require employers to provide the opportunity for timely meal periods, or alternatively whether meal period laws require employers to ensure that employees actually take timely meal periods, is a common legal question to be decided after class certification. The trial court certified a class of more than 59,000 employees.

The California Court of Appeal reversed the trial court's class certification order on the ground that the trial court erred in not determining the applicable legal standards before reaching the issue of class certification and articulated the following legal standards:

  • Meal Periods. The Brinker Court, consistent with three recent federal courts, held that an employer need only provide (that is, make available) meal periods, not ensure that they are taken. Employers, of course, cannot impede, discourage or dissuade employees from taking them. In addition, employers are not required to provide a meal period for every five consecutive hours worked; rather employers need only provide a second meal period if the employee works more than ten hours in a day (and there is no waiver). 
  • Rest Breaks. Employers must "authorize and permit" nonexempt employees to take rest breaks. Employers, of course, cannot impede, discourage or dissuade employees from taking them.
  • Off-the-Clock Work. The Court of Appeal also held that employers cannot coerce, require or compel employees to work off the clock, but they can only be held liable for employees working off the clock if they knew or should have known the employees were doing so.

Having determined the correct legal standards, the Court of Appeal concluded that individual issues predominate as to each of these claims and thus that class certification was not proper. The Brinker Court said: "[O]ur conclusion that individual issues predominate does not dictate that claims asserting violations of rest break laws can never be certified as a matter of law. Rather, we are only concluding that under the facts presented to the trial court in this case, and the manner in which plaintiffs' claims are defined, the claims in this case are not suitable for class treatment." The same applies to meal periods. However, in most cases, an individualized inquiry will be required, which would strongly indicate that class certification would be inappropriate under Brinker (and the three federal court decisions).

Practical Implications

It is premature to determine the practical implications of Brinker because the decision may be reviewed by the California Supreme Court. 

  • For now, it remains important for California employers to have legally compliant meal and rest break and time keeping policies and provide appropriate training to employees and supervisors.

  • Employers should closely examine their meal and rest break policies and practices to make sure they are not doing anything to impede, discourage or dissuade employees from taking meal and rest breaks provided by law.

  • Employers should consider having non-exempt employees sign on-duty meal period agreements and having policies and/or agreements providing for other types of meal period waivers.

  • Employees should closely examine their time-keeping policies and practices to make sure that nonexempt employees are accurately recording all hours actually worked and to make sure supervisors are not making improper changes to time records. Employers should consider requiring that nonexempt employees obtain pre-approval before working overtime or other time outside their regular work schedules.

  • If you currently have a meal period, rest break or off-the-clock class action lawsuit pending, you should consult legal counsel about how Brinker may impact your case. 

We would be happy to assist you regarding meal and rest breaks, time keeping, and other wage and hour issues and appropriate written policies in these areas.

Gibson, Dunn & Crutcher LLP

Gibson, Dunn & Crutcher's Labor and Employment Practice Group is available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work, or any of the following: 
Scott A. Kruse - Los Angeles (213-229-7970, skruse@gibsondunn.com
 
Elisabeth C. Watson - Los Angeles (213-229-7435, ewatson@gibsondunn.com
Pamela Hemminger - Los Angeles (213-229-7274, phemminger@gibsondunn.com)
William D. Claster - Orange County (949-451-3804, wclaster@gibsondunn.com
Christopher J. Martin - Palo Alto (650-849-5305, cjmartin@gibsondunn.com)
Eugene Scalia - Practice Chair, Washington, DC (202-955-8206, escalia@gibsondunn.com)

© 2008 Gibson, Dunn & Crutcher LLP

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