Today, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court addressing employers' obligations to authorize and permit non-exempt employees to take required rest periods, employers' obligations to provide to non-exempt employees required meal periods, and related issues concerning class action litigation of rest period claims, of meal period claims, and of "off-the-clock" work claims. While the decision does bring welcome clarity to some of the issues, we think the decision leaves unanswered the important question of precisely what an employer must do to meet its obligation to "provide" required meal periods, and we think the decision is a mixed bag for employers in some respects.
Rest Periods.
The decision provides welcome clarity regarding an employer's obligation to authorize and permit non-exempt employees to take at least one rest period of 10 minutes for each four hours of work "or major fraction thereof." The court states, "[t]hough not defined in the [Industrial Welfare Commission] wage order[s], a 'major fraction' long has been understood--legally, mathematically, and linguistically--to mean a fraction greater than one-half." According to the court, this means "[e]mployees are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."
With respect to the timing of the 10-minute rest periods an employer must authorize and permit non-exempt employees to take, the court states, "[t]he only constraint on timing is that rest breaks must fall in the middle of work periods 'insofar as practicable." The court goes on to explain "[e]mployers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." The court declined to state for purposes of a trial court's decision whether or not to certify for class treatment a rest period claim "what considerations might be legally sufficient to justify such a departure" from the general requirement "that rest breaks must fall in the middle of work periods."
Meal Periods.
One of the core issues in the case was the issue of whether an employer's obligation to "provide" meal periods means an employer must make required meals periods available to non-exempt employees or means an employer must ensure non-exempt employees take the required meal periods made available to them. The court concluded "an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work." While that aspect of the decision is certainly welcome news for employers, the decision leaves unanswered what an employer must do to satisfy the employer's obligation to "relieve the employee of all duty." The court states what must occur: "Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," but the court did not explain beyond that what an employer must do in the first instance in order to "relieve the employee of all duty." Indeed, the court states: "What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law."
Core issues in the case related to an employer's obligation to "provide" required meal periods were the issues of when during the workday employers must "provide" the first meal period and whether, and if so, when during the workday employers must "provide" a second meal period. It has been widely believed that an employer is required to "provide" a second meal period only when a non-exempt employee works more than 10 hours in a workday and only after the tenth hour of work. However, on account of language in the Industrial Welfare CommissionWage Orders stating "[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes," the court considered whether an employee who takes a meal period relatively early in his or her workday is entitled to a second meal period if an employee works 5 hours after taking an "early" meal period, even if the employee's workday does not exceed 10 hours. In another welcome aspect of the decision, the court rejected the notion that employers are required to "provide" such "rolling" meal periods. The court concluded Labor Code section 512 "requires a first meal period no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work," if an employee works more than 10 hours in a workday.
"Off-The-Clock" Work.
Meal period claims are often accompanied by claims that employees worked "off-the-clock" and were not paid for time spent working before clocking in at the beginning of the workday, for time spent working during meal periods, and/or for time spent working after clocking out at the end of the workday. While the court's decision is in some ways not as favorable to employers as we would like regarding class certification issues related to meal and rest period claims, the court affirmed the Court of Appeal's decision to vacate the trial court's certification of the "off-the-clock" subclass because the court determined there was insufficient evidence presented to the trial court of a common policy or of a common method of proving the employer required or suffered or permitted employees to work "off-the-clock." The court states: On a record such as this, where no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by-employee fashion, demonstrating who worked off the clock, how long they worked, and whether [the employer] knew or should have known of their work." Notably, the court states, also: "[T]hat employees are clocked out creates a presumption they are doing no work, a presumption [plaintiff] and the putative class members have the burden to rebut."
Today's decision further reinforces our belief that California employers can help to reduce their potential exposure to wage and hour liability and to defend against such claims by adopting and maintaining clear written policies consistent with California law, by requiring that non-exempt employees perform no work before clocking in or after clocking out, and by requiring that employees clock out during all required meal periods.
