The California Supreme Court has issued its much anticipated decision on meal and rest breaks, Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Cal. Apr. 12, 2012) 

In a unanimous opinion authored by Justice Werdegar, the court decided several important issues concerning an employer's obligation to provide meal and rest breaks under California law—an area of the law that has spawned many class action lawsuits in recent years.

Meal Periods

Obligation to Relieve Employees of All Duty and Relinquish Control, but Not to Ensure that No Work Is Performed

An employer satisfies its obligation to “provide” a meal period to its employees “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay. . . .” The court observed that “[i]ndeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.”

The court, commenting that “[w]hat will suffice may vary from industry to industry,” declined to try to “delineate the full range of approaches that in each instance might be sufficient to satisfy the law.”

The court noted the potential for a scenario where an employee who has been validly relieved of all duty nonetheless chooses to work, with the employer’s knowledge or in circumstances where the employer reasonably should know. In such a circumstance, the employer may be liable for straight pay for the meal break, but not for the premium hour for failure to provide a meal.

Obligation to Commence Meals No Later Than Five and Ten Hour Marks, Not on “Rolling 5” Basis

The court held that first meal periods must start after no more than five hours, and the same principle applies to second meals, that is, they are required after no more than ten hours of work in a day, “i.e., no later than what would be the start of the 11th hour of work, absent waiver.” This is true under both the applicable statute and the wage orders.

The court rejected plaintiffs’ contention that a second meal period is required no later than five hours after the end of a first meal period if a shift is to continue. “The text does not permit such a reading. It requires a second meal after no more than 10 hours of work; it does not add the caveat ‘or less, if the first meal period occurs earlier than the end of five hours of work.’”

Rest Breaks

Obligation to Allow Rest Break Every Four Hours or Major Fraction Thereof

An employer must authorize ten minute rest breaks for every four hours worked or “major fraction” thereof, which means time in excess of two hours (subject to an initial threshold of three and a half hours of work before a break need be allowed). In practical effect: “Employees 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.”

No Categorical Obligation to Provide a Rest Break Before Meals, Depending on Facts

The court rejected an argument by plaintiffs that employers always have a legal duty to permit their employees a rest period before any meal period. Giving the example of an employee working a six-hour shift, the court observed that such an employee is ordinarily entitled to one meal period and one rest period. “Either the rest period must fall before the meal period or it must fall after. Neither text nor logic dictates an order for these. . . .” To be clear, however, the court had no quarrel with the dictate of the wage orders that “insofar as practicable[, rest breaks] shall be in the middle of each work period.”

Class Certification

Although conventional wisdom has held that it is difficult to justify certification of a rest break class because the right to take a break may be waived and waiver can present individualized issues, the court here approved the trial court’s decision to certify such a class. The court’s decision relied in significant part on the employer’s uniform corporate rest break policy, which appears on its face to have authorized breaks only for each full four hours worked. Such a policy could be read to violate the law by failing “to give full effect to the ‘major fraction’ language.” The court concluded that this “theory of liability—that Brinker has a uniform policy, and that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment.” Although plaintiffs may now argue that the court expressed a preference for certification of rest break classes, the opinion is by no means so broad and does not deny the disparate issues that may be presented in an appropriate case where waiver is genuinely at issue. It is telling that the court wrote, “[n]o issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”

Certification of Off-the-Clock Claims

The court agreed that it was inappropriate to certify an “off-the-clock” class premised on the time allegedly worked by employees during their meal breaks. The court did not, of course, hold that such a class could never be appropriate. But in contrast to the rest break class discussed above, where the court relied on the employer’s uniform policy, the court held here that “neither a common policy nor a common method of proof is apparent.” The only formal company policy submitted disavowed off-the-clock work, consistent with state law, and plaintiffs failed to present substantial evidence of a systematic company policy to pressure or require employees to work off the clock.

The court added some observations about the presumptions that may be drawn from meal punch records. First, the court noted that employees having clocked out creates a presumption they are doing no work. In the face of that presumption, plaintiffs bear the burden to rebut it and show that they were working and that the employer knew or should have known off-the-clock work was occurring. By contrast, Justice Werdegar’s separate concurrence commented that if an employer’s records show no meal period for a given shift over five hours, this creates a rebuttable presumption that the employee was not relieved of duty and no meal period was provided. She added that “[a]n employer’s assertion that it did relieve the employee of duty, but the employee waived the opportunity to have a work-free break, is not an element that a plaintiff must disprove as part of the plaintiff’s case-in-chief. Rather, . . . the assertion is an affirmative defense, and thus the burden is on the employer, as the party asserting waiver, to plead and prove it.” Thus, while employers need not scrupulously police their employees to ensure they are never working during meals, significant caution is in order when an employee wishes not to clock out at all.

© 2012 Perkins Coie LLP