Labor and Employment Law Alert, July 2008

On July 22, 2008, the California Court of Appeal for the Fourth District handed California employers a major victory in the continuing battle over the extent of a California employer’s obligation to provide meal and rest periods. The court issued a decision in Brinker Restaurant Corp. v. Super. Ct. (Cal.App.4th 1st Dist. D049331A on transfer from the California Supreme Court) that addressed an issue of significant importance for California employers.

In October 2007, the same appellate court issued a highly anticipated ruling reversing an order certifying a class alleging various violations of the Labor Code, including meal and rest period violations. The appellate court determined that the plaintiff’s rest period claims were not susceptible to class treatment because: (1) rest periods can be waived by employees; and (2) employers are not legally required to schedule rest breaks in the middle of shifts as was alleged by the plaintiffs. The appellate court also rejected the class meal period claim, holding that employers are only required to provide one meal period for any shift that does not exceed ten hours, rather than for every five hours worked as alleged by the plaintiffs. The appellate court left one important question unanswered, whether an employer must ensure that employees take their meal breaks. The appellate court’s opinion was not published; however, it was viewed as a victory for employers defending wage and hour class action lawsuits.

On reconsideration of the matter following transfer from the California Supreme Court, the court affirmed its earlier decision, concluding the class certification order was erroneous and must be vacated because the trial court failed to properly consider the elements of plaintiffs’ claims in determining if they were susceptible to class treatment. In its published decision, the appellate court specifically held 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; and

(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.

The appellate court concluded that because an employer is only required to "make available" the rest and meal breaks and it need not "ensure" that they are taken, individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

The Brinker decision represents the first published California appellate court decision to rule in favor of employers on this highly controversial and litigated topic. The Brinker decision follows two recent California federal court decisions, Brown v. Federal Express Corp. (C.D.Cal. 2008) ___ F.R.D. ____ and White v. Starbucks Corp., (N.D.Cal. 2007) 497 F.Supp.2d 1080, that also held an employer need not ensure that its employees take their meal and rest breaks.

The Brinker decision is still subject to review by the California Supreme Court, and it is very likely that it will be appealed. Stay tuned for further develops in this very important area of the law.

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