California Supreme Court Delays Decision In Long Awaited Brinker Meal Period Case

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the California Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.  

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.

After the California Supreme Court granted review of Brinker, the Court of Appeal issued seven additional decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Hermandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, Lamps Plus Overtime Cases, and Santos v. Vitas Healthcare.  However, the California Supreme Court promptly granted review of each of those seven decisions, too, and, like Brinker, those seven decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them.  

This state of affairs left employers, employees, and courts tasked with resolving disputes over whether an employer has or has not complied with its obligations to "provide" required meal periods in the dark about what the law requires and has complicated the handling of the innumerable class action wage and hour lawsuits brought against California employers. 

On November 8, 2011, over three years after granting review, the California Supreme Court conducted the long awaited oral argument.  

In an unusual turn of events, on December 2, 2011, the court granted the request of the California Employment Law Council to submit an additional post-hearing amicus curiae or "friend of the court" brief addressing the issue of "rolling" meal breaks, which was raised during the November 8, 2011 oral argument.  The issue concerns 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 Commission Wage 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 is now considering 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.

On December 14, 2011, the California Supreme Court issued an order permitting the parties to the case to file no later than January 13, 2012, answers to the  additional post-hearing amicus curiae brief submitted by the California Employment Law Council and permitting replies to any such answers to be filed no later than January 13, 2012.  In that same order, the California Supreme Court vacating "submission of the cause" and stating the case will be deemed resubmitted on January 13, 2012.  By that order, the court effectively extended the 90 day deadline for the court to issue its decision in the case from February 6, 2011 (i.e., 90 days after the close of the November 8, 2011 oral argument) to April 11, 2012.  

We are continuing to monitor this important case, and will report on further developments as information becomes available.

California Supreme Court Accepts Post Hearing Additional Briefing In Pending Brinker Meal Period Case: Will The Court Require "Rolling" Meal Periods?

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the California Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.  

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.

After the California Supreme Court granted review of Brinker, the Court of Appeal issued seven additional decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Hermandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, Lamps Plus Overtime Cases, and Santos v. Vitas Healthcare.  However, the California Supreme Court promptly granted review of each of those seven decisions, too, and, like Brinker, those seven decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them.  

This state of affairs left employers, employees, and courts tasked with resolving disputes over whether an employer has or has not complied with its obligations to "provide" required meal periods in the dark about what the law requires and has complicated the handling of the innumerable class action wage and hour lawsuits brought against California employers. 

On November 8, 2011, over three years after granting review, the California Supreme Court conducted the long awaited oral argument.  

In an unusual turn of events, on December 2, 2011, the court granted the request of the California Employment Law Council to submit an additional post-hearing amicus curiae or "friend of the court" brief addressing the issue of "rolling" meal breaks, which was raised during the November 8, 2011 oral argument.  The issue concerns 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 Commission Wage 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 is now considering 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. 

Suffice it to say it would be a stunning development if the court holds employers are required to "provide" such "rolling" meal periods.  Such a holding would potentially expose California employers to truly unanticipated potential liability for penalties for failing to "provide" a second meal period even when an employee does not work more than 10 hours in a workday and would further compromise employers' ability to provide employees flexibility as to when meal periods take place.

We are continuing to monitor this case, and will report on further developments as information becomes available. 

Employer's Meal Period Obligations Remain Uncertain While Employers Await Guidance From The California Supreme Court

By Christopher S. Andre and Scott K. Dauscher

On July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one an unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations. 

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.  

After the California Supreme Court granted review of Brinker, the Court of Appeal issued four additional Court of Appeal Decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., and Hermandez v. Chipotle Mexican Grill. However, the California Supreme Court promptly granted review of each of those four decisions, too, and, like Brinker, those four decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them. 

The Brinker decision has been fully briefed for well over a year, since July 20, 2009, but the Supreme Court still has not scheduled the case for oral argument.  As a result, it remains uncertain whether the law requires an employer to make required meal periods available or requires an employer to ensure employees take all required meal periods. No one can be certain how the Supreme Court will decide this issue until the court conducts oral argument and issues its decision.

Meal period violations can be a source of very substantial liability for employers.  When an employer is found to have failed to "provide" a required meal period, Labor Code section 226.7 requires the employer to pay the employee one additional hour of compensation at the employee's regular rate of pay for each workday the employer failed to "provide" a required meal period.  In addition, the employer will generally be liable also for the plaintiff(s) "reasonable" attorney's fees and costs, and, possibly, for additional penalties.  Many if not most meal period cases are brought as class actions.  

In the class action context, the numbers can add up quickly.  For example, assume a class size of 500 current and former employees (many classes are much larger).  Assume, also, there is a finding the employer failed to "provide" required meal periods approximately half the time because the employer did not "provide" the meal periods within the first five hours of the employees' shift, because the meal period was not completely duty free, or because the meal periods were not uninterrupted for at least 30 minutes each day.  Assume, also, that the violations go back four years.  Finally, assume an average hourly wage of $20.00.  In that scenario, the liability just for the Labor Code section 226.7 additional hour of compensation would be approximately $5 Million.  

If anything, the legal climate in California has grown more challenging for employers during the last five years as appellate decisions have generally not been favorable for employers, and we think this situation is not likely to improve in the foreseeable future.  Fortunately, there are steps an employer can take to reduce the likelihood of being sued to begin with and to help defend against meal period claims if the employer is sued.  One of the most important steps an employer can take is to have a written meal period policy and to require employees to acknowledge their receipt of that policy and their understanding of that policy.  Some other important steps employers can take are to require employees to document ithat they took all required meal periods and to promptly notify the employer in writing if the employee did not take for any reason a required meal period.  Further, employers should consider disciplining employees who fail to follow such policies.