California Labor &
Employment Law Blog
Oct 23, 2007

Appellate Court Potentially Affirms Favorable Interpretation of Employers’ Obligation to “Provide” B

Topics: Court Decisions, Wage & Hour Issues

There have been few decisions dealing with the question of whether employers are merely obligated to "provide" meal breaks to employees simplyby making such breaks available or -- as many plaintiffs have argued -- whether the obligation to "provide" meal breaks in factcarries with it an obligation for employers to forcefully ensure that employees are actuallytaking such breaks, e.g., to actively police employees to ensure meal breaks are bothoffered and taken. The answer to thisquestionwill clearly havea significant impact on whether such claims are amenable to class treatment in class actions.

Appearing to address this issue favorably for employers,a California Court of Appeal in Brinker Restaurant Corp. v. Superior Court, 2007 WL 2965604 (Oct. 12, 2007) -- a recent but as yet unpublished decision -- reversed a trial court's class certification order (which included meal and rest break claims), stating that the trial court's order relied on improper criteria and incorrect assumptions, including its failurein deciding the issue of what it means to "provide" meal breaks. The Brinker courtheld that the class certification order was erroneous and had to be vacated because, among other reasons, "the class certification order rests on an incorrect assumption with respect to the meal period claims to the extent those claims are based on the theory that [the employer] had a duty to ensure that its hourly employees took the meal periodsit provided to them, and thus the court abused its discretion in finding that these claims are amenableto class treatment."

Specifically, in Brinker, a group of restaurant employees sued their employer for alleged failure to provide certain rest breaks and meal breaks, or compensation in lieu of such breaks, and also claimed that the restaurant required them to perform "work off the clock" during meal periods. The decision contains substantially positive analysis concerningtheseclaims as well as their amenability to class treatment, including a discussion of whenbreaks must be provided in terms of timing during the workday andthatrest periods may be waived. However,a mostnotable feature of the opinion is that it apparently, although not expressly, endorses the interpretation that an employer's obligation to "provide" employees with a meal break merely means to "offer" meal breaks or to make such breaks available. The Brinker Court cited White v. Starbucks Corp., 497 F.Supp.2d 1080 (N.D. 2007), a positive publishedfederal decisionwhich held that "provide" requires only that employers "offer" meal breaks.Unfortunately, the Brinker decision avoids a completely clear ruling on this question, instead pointing to the trial court's error in simply failing to decide on the issue of the meaning of "provide," but thecite to Whitemay be indicative of the trendin such cases. Hopefully, the Brinkerdecision will ultimatelybe published andsubsequent cases, especially class action cases,willbenefit from havinga clearer answer to the question of how to"provide" meal breaks once and for all.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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