CALIFORNIA APPELLATE COURT EXPLAINS MEAL AND REST PERIOD RULES AND DENIES CLASS CERTIFICATION

In Brinker Restaurant Corporation v. Superior Court of San Diego (Hohnbaum), a purported class of approximately 59,000 hourly restaurant employees, including servers, hosts, bartenders, dishwashers and cooks, sued their employer for unpaid wages and penalties, alleging that the employer had corporate policies of improper early meals, time shaving, failing to provide meal and rest period breaks, and forcing off-the-clock work. Plaintiffs further alleged that based on the employer's use of a centralized computer system, which could generate reports showing class-wide meal and rest break violations, common issues predominated, thereby entitling them to class certification.

The Court of Appeal held that plaintiffs' claims could not be resolved without a determination as to the reasons for each missed or shortened meal and rest break and for each instance of off-the-clock work. The Brinker court noted that such determinations necessarily entail an individualized inquiry. Accordingly, it held that the trial court erred in granting class certification because individual rather than common issues predominated.

Rest Period Breaks:

Plaintiffs claimed that the employer violated the California wage orders by failing to provide a ten-minute rest break every three and one-half hours. Brinker reaffirmed that employers are not obligated to "ensure" that employees take rest breaks, but rather need only make such breaks available to employees. The appellate court clarified that an employee is only entitled to a rest break before the four-hour mark when that employee is scheduled for a shift that is more than three and one-half hours, but less than four hours. If, however, the employee is scheduled for a shift that is longer than four hours, that employee is only entitled to a rest break every four hours. The court further noted that employers have discretion not to provide rest breaks in the middle of a four-hour work period if due to the nature of the work or the circumstances of a particular employee, it is not practicable to do so. Brinker held that as long as employers make rest breaks available to employees, and strive, where practicable, to schedule them in the middle of the four-hour work period, employers are in compliance with the rest period requirements of the California wage orders.

The court then determined that plaintiffs' rest period claims could not be litigated on a class basis because an individualized inquiry was required. Because an employer is not required to ensure that its employees actually take rest breaks, a showing that class members missed rest breaks or took shortened rest breaks is insufficient to establish a class-wide rest period claim. Such evidence does not address the critical issue of why the rest periods were missed or shortened, i.e, whether the alleged rest break violations were the result of a supervisor's coercion or of the employees' choice to waive the rest break and continue working. The Brinker court expressly held that "the issue of whether rest periods are prohibited or voluntarily declined is by its nature an individual inquiry." Indeed, "the question of whether employees were forced to forgo rest breaks or voluntarily chose not to take them is a highly individualized inquiry that would result in thousands of mini-trials to determine as to each employee if a particular manager prohibited a full, timely break or if the employee waived it or voluntarily cut it short." The court further held that the issues of whether each class member received a full ten-minute rest break, and whether the employer's scheduling of rest breaks was practicable in each instance also required an individualized inquiry.

Meal Period Breaks:

The employer's written meal period policy stated that employees were entitled to a thirty-minute meal period break when they worked a shift that was over five hours long. Plaintiffs claimed they were required to take a meal break within the first hour of their shift, and then required to work up to an additional nine hours without another meal break. They argued that under California law, they were entitled to "rolling" five-hour meal periods, meaning that once a meal period concluded, the five-hour meal period clock started up again. Plaintiffs thus alleged that the employer's meal period policy violated California law because it did not provide a meal break for every five consecutive hours of work. Plaintiffs also asserted that under California law, employers have an affirmative duty to ensure that their employees take meal breaks, and that here, the employer failed to do so.

The Brinker court held that the employer's meal break policy comported with California law. See Labor Code Section 512(a) ("An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.") Thus, an employer does not run afoul of California law so long as it provides an employee, who works more than five hours per day, with the opportunity to take a thirty-minute meal break at any time during the day, and need not provide a second meal period break, unless the employee works over ten hours. In addition, as with rest periods, the court concluded that "employers need only make meal breaks available, not 'ensure' they are taken." Brinker specifically noted that public policy does not support the notion that employers must "ensure" that meal periods are taken. If that were the case, employers would be required to police their employees and force them to take meal breaks. For large employers, with thousands of employees working multiple shifts, such a task would be "impossible." Moreover, because of the missed meal period premium required by Labor Code Section 226.7, employers would be required to pay an extra hour of wages to employees who voluntarily choose not to take a meal period, or who take a shortened meal period, even if the employer made a full thirty-minute meal break available to them.

The Brinker court held that plaintiffs' meal break claims were not amenable to class treatment for the same reasons as their rest break claims. Specifically, the court noted that the evidence indicated that some employees took meal breaks, while others did not, and that the reason that meal breaks were not taken could only be decided on a case-by-case basis, i.e., whether a missed or shortened meal period was the result of an employee's personal choice, a supervisor's coercion, or inadequate staffing. Accordingly, individual issues predominated over common issues, thereby rendering class certification inappropriate.

Working Off The Clock:

Plaintiffs also claimed that they were required to work "off the clock" during meal breaks, and that the employer had a practice of "shaving" their time by altering their time records to reduce the amount of time worked. However, as conceded by plaintiffs, employers can only be held liable for off the clock work if they knew or should have known that the employees were working "off the clock." Here again, although plaintiffs had class-wide evidence showing the number of times they worked during a meal a period and/or the number of times changes were made to their time cards, they did not have evidence showing why they worked off the clock (personal choice or management coercion), or whether their supervisors had any knowledge, actual or constructive, of their "off the clock" work. Similar to plaintiffs' rest and meal break claims, the court concluded that resolution of their "off the clock" claims would necessitate an individualized inquiry, thereby rendering class treatment inappropriate.

What This Means For Employers:

The plaintiffs are likely to petition the California Supreme Court to grant review of Brinker. Until the Supreme Court has either granted or denied review, or until there is some legislative intervention, employers should not change their rest break and meal period policies per the Brinker ruling. Employers should continue to monitor their employees to ensure they are aware of the policies and are complying with them. For more information on the Brinker decision, and other California wage and hour issues, please call a CRWT attorney.