United States: California Employers "Provide" Meal Periods by Making Them Available but Need Not Ensure that Employees Take Them

Originally published April 18, 2012

Keywords: California, duty free-meal periods, rest period requirements

On April 12, 2012, the California Supreme Court issued its long-awaited decision on the scope of an employer's obligation under California law to "provide" employees with meal and rest periods. (Brinker Restaurant Corp., et al. v. Superior Court of San Diego County (Hohbaum, et al.), California Supreme Court, Case # S166350, 4/12/2012.) This decision, which is a significant victory for employers, will be of interest to all businesses with California employees.

More specifically, the Supreme Court held that employers satisfy their obligation under California law to provide duty-free meal periods by making them available, but need not ensure that employees actually take the meal periods. This resolved a legal issue that has perplexed employers in their efforts to develop and implement meal period policies, and has been at the heart of many, if not most, of the large number of meal and rest period cases filed in California in the last decade. In addition, the court clarified an important issue of class certification law that had divided the lower courts, holding that a court considering a motion to certify a class must resolve disputed legal or factual issues that were necessary to determine whether common issues predominated over individualized ones.

The Brinker Action

California law generally requires employers to provide their nonexempt employees with a 30-minute meal period for each day that they work more than five hours, and to authorize and permit a 10-minute rest period for each day that they work more than three and one-half hours. These meal and rest period requirements are codified in section 512 of the California Labor Code and in Wage Orders issued by the Industrial Welfare Commission. Wage Orders are as binding on employers as statutes.

The Labor Code and the Wage Orders address meal periods, and the Wage Orders prescribe rest periods. Employers are prohibited from requiring employees to work during any meal or rest period mandated by statute or Wage Order. Employers that violate these requirements must pay employees premium wages in the amount of one additional hour of pay at the employee's regular rate of compensation for each work day that a meal or rest period is not provided.

In Brinker, five hourly, nonexempt employees filed a putative class action alleging that Brinker (i) failed to provide employees with rest breaks, or premium wages in lieu of rest breaks, as required by California law, (ii) failed to provide employees the meal breaks, or premium wages in lieu of meal breaks, as required by California law, and (iii) required employees to work off-the-clock during meal periods and engaged in time shaving (i.e., unlawfully altering employee time records to misreport the amount of time worked and break time taken).

The trial court certified a number of subclasses, including a "meal period subclass," a "rest period subclass" and an "off-the-clock subclass," finding that common factual issues predominated over individualized factual issues with respect to each of those subclasses. The Court of Appeal reversed as to all three subclasses, holding that the Superior Court had committed error per se by ruling on class certification without first resolving the legal disputes over the scope of Brinker's duties to provide meal and rest periods. The Court of Appeal further held that any court, upon resolving those disputes, could only have concluded that class certification was inappropriate. The Supreme Court granted review "to resolve uncertainties in the handling of wage and hour class certification motions."

Scope of Employers' Obligation to Provide Meal Period

The Labor Code and the Wage Orders generally provide, with narrow exceptions, that, absent a waiver, employers must provide a first 30-minute meal period by the end of the fifth hour of work and, absent a waiver, must provide a second 30- minute meal period by the end of the tenth hour of work.

Plaintiffs contended that an employer is obligated to "ensure that work stops for the required thirty minutes." Brinker contended that an employer is obligated only to make meal periods available, not ensure that employees actually take them.

The Supreme Court agreed with Brinker and held that "an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work." The Supreme Court warned, however, that "an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks" and that "the wage orders and governing statutes do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks." Moreover, an employer must pay for any time it knows or has reason to know that its employees worked during meal periods. Significantly, the Supreme Court recognized that what is sufficient to satisfy California's meal period rules will "vary from industry to industry."

The Supreme Court also rejected plaintiffs' contention that the applicable Wage Order required Brinker to provide a meal period every five hours. Plaintiffs had alleged that Brinker's practice of requiring "early lunching," i.e., taking a meal period soon after the beginning of a work shift, followed by six or more hours without an additional meal period, did not comply with the Wage Order. The Supreme Court disagreed with plaintiffs' "rolling five-hour" contention, holding that the applicable Wage Order imposes no other timing restrictions: "Under the wage order, as under the statute, an employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work."

Scope of Employers' Obligation to Provide Rest Period

The Supreme Court next addressed how often an employer must allow rest periods. This obligation is defined solely by the Wage Orders, which, for most industries and occupations, provide that employers must "authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period." The rest period time must be "based on the total hours worked daily at the rate of ten minutes net rest time per four hours or major fraction thereof." However, employers need not authorize a rest period for employees whose total daily work time is less than three and one-half hours.

The Supreme Court held that the Court of Appeal misconstrued this last provision to define a "major fraction" of four hours of work to be at least three and one-half hours. Under that interpretation, employees would be entitled to a 10-minute rest period only if they worked a shift of three and one-half hours or more, and to a second 10-minute rest period only if they worked a shift of seven and one-half hours or more. The Supreme Court ruled that, except for the first four-hour work period, the phrase "major fraction thereof" as applied to a four-hour period means any amount of time in excess of two hours—i.e., any fraction greater than half. Accordingly, employees are entitled to a 10- minute rest break for working shifts from three and one-half hours to six hours in length, another 10-minute rest break for shifts of more than six hours up to 10 hours, and another 10-minute rest break for shifts of more than 10 hours up to 14 hours, and so on.

Finally, the Supreme Court rejected plaintiffs' claim that employers have a legal duty to permit their employees a rest period before any meal period. The Supreme Court disagreed and found that the Wage Orders do not specify the sequence of meal and rest breaks. The only constraint on timing of rest periods is that they must be authorized "insofar as practicable . . . in the middle of each [four hour] work period." Thus, "[e]mployers are ... 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 infeasible."

Standards for Class Certification

In addition to clarifying the meal and rest break standards, the court resolved a long-standing dispute between the plaintiff and defense bars as to whether merits consideration may be analyzed within the context of a motion for class certification. The Supreme Court answered the question in the affirmative, reasoning that whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. For example, "whether reliance or a breach of duty can be demonstrated collectively or poses insuperable problems of individualized proof may be determinable only after closer inspection of the nature of the reliance required or duty owed and, in some instances, resolution of legal or factual disputes going directly to the merits." Although the trial courts may look into the merits of a claim, however, they need not resolve every threshold dispute over the elements of a claim, and should do so only to make determinations that are necessary to decide class certification.

In sum, when presented with a class certification motion:

... a trial court must examine the plaintiff's theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision.

The Supreme Court's unanimous opinion did not discuss the validity of statistical evidence—a device relied upon by plaintiffs in many employment class actions—to establish liability. Nevertheless, the concurring opinion of two justices (including Justice Werdegar, the author of the Court's opinion) suggests that representative testimony, surveys, and statistical analysis may be used as tools to "render manageable determinations of the extent of liability." Their suggested approach differs with the United States Supreme Court, as set forth in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2561 (2011), which unanimously rejected so-called "trial by formula," and a recent California Court of Appeal decision in Duran v. U.S. Bank National Association, 203 Cal.App.4th 212, 258- 259 (2012), petition for review filed, No. S200923 (Mar. 19, 2012), which followed Dukes. If it chooses to review Duran, the Supreme Court may face another important question in the near future about the use of statistical or sample evidence.

Rulings on Class Certification

In finding that the propriety of a certifying a class may hinge on the resolution of a disputed merits question at the threshold, the Supreme Court resolved the certification issues as follows. With regard to the meal break subclass, it remanded the question of whether certification was proper after resolving the legal standard that employers are not required to make meal periods available every five hours. That new articulation of the California Labor Code rendered the definition of the meal period subclass overinclusive because it captured class members who had not received meal periods on a "rolling" five-hour basis. Presumably, on remand, plaintiffs may try to obtain certification by presenting evidence that Brinker had adopted a policy of effectively preventing employees from taking meal breaks.

With regard to the rest period subclass, however, the Supreme Court upheld the trial court's certification order because plaintiffs presented evidence that Brinker Restaurants had adopted a uniform corporate rest-break policy that did not give full effect to the "major fraction" language in the Wage Order just reviewed. The Supreme Court found that plaintiffs had presented substantial evidence of a common uniform break policy that authorized rest breaks only for each full four-hour work period. It held that "[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment." The Supreme Court also disagreed with the Court of Appeal's conclusion that individual questions would predominate because employees may waive rest periods. To the contrary, the Supreme Court held that "[n]o issue of waiver ever arises for a rest break that was required by law but never authorized."

Finally, the Supreme Court held that the trial court's certification of the off-the-clock subclass was an abuse of discretion. It reasoned that plaintiffs had not presented substantial evidence of a common policy for employees to work off-the-clock and that there was no common method of proving that Brinker knew or should have known that off-the-clock work was occurring. In fact, the Supreme Court found that the only formal Brinker off-the-clock policy submitted prohibited off-the-clock work (consistent with state law). Plaintiffs also had not presented substantial evidence of a systematic company policy to pressure or require employees to work off-the-clock, or substantial evidence that Brinker knew or should have known that employees were working off-the-clock. Thus, certification was improper: "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 Brinker knew or should have known of their work."

Conclusion

The Brinker decision is a significant victory for California employers. It finally establishes that in providing meal and rest periods, California employers do not have to ensure that they are taken. The Court's ruling also gives employers some flexibility regarding meal and rest periods, so long as no company policy conflicts with the requirements of the Labor Code or Wage Orders. Finally, the decision provides some welcome structure to class certification analysis in the California courts.

Learn more about our Commercial Litigation, Consumer Litigation & Class Actions and Employment practice.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2012. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions