Brinker Court Favorably Resolves Dispute on “Providing” Meal Breaks
Today a California Court of Appeal finally resolved the dispute regarding what it means to "provide" employees with meal breaks. Following some unusual transitions between being an unpublished opinion, a vacated opinion, an appealed opinion, and a transfer back to the Court of Appeal for reconsideration, the Court of Appeal today issued a new published decision in Brinker Restaurant Corp. v. Superior Court, previously discussed in our October 23, 2007 and November 12, 2007 postings.
Resolving this issue favorably for employers, the California Court of Appeal in Brinker reversed the trial court's class certification order (which included meal and rest break claims and off-the-clock claims), concluding that the trial court "failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment." A primary highlight of this reversal includes the Court of Appeal's analysis of the issue of what it means to "provide" meal breaks. The Brinker court held that the class certification order was erroneous and had to be vacated based on the following conclusions:
"Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock. Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class."
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 concerning these claims as well as their amenability to class treatment, including a discussion of when breaks must be provided in terms of timing during the workday and that rest periods may be waived. However, still the most notable feature of the opinion is that it now 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 favorably cites White v. Starbucks Corp., a positive published federal decision which held that "provide" requires only that employers "offer" meal breaks. The Brinker Court also cites the district court's reasoning and conclusions in Brown v. Federal Express Corp., in support of its determination of what it means to "provide" meal breaks. The Court noted that the plaintiffs in Brown, as in Brinker, asserted that "California law requires employers to ensure that meal breaks are actually taken." The district court in Brown rejected this argument, holding that section 512 and the applicable wage order did not support plaintiff's position. The court explained that section 512's statement that employer must "provide" meal periods "does not suggest any obligation to ensure that employees take advantage of what is made available to them." The court also noted that the California Supreme Court "in characterizing violations of California's meal period obligations...repeatedly described it as an obligation not to force employees to work through breaks." The court also noted that "[r]equiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous...it would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws." The Brinker Court found the reasoning in Starbucks and Brown persuasive and concluded that employers need not ensure meal breaks are actually taken, but need only make them available.
The Brinker Court rejected the plaintiffs' assertion that employers must "ensure" meal breaks are taken, distinguishing the oft-cited Cicairos decision on its facts:"Cicairos should be read under the facts presented by that case. There, the defendant employer had a computerized system on each truck that allowed defendant to keep track of the drivers' activities, such as speed, starts and stops, and time. Furthermore, drivers had to input certain activities manually, such as road construction and heavy traffic. Although the defendant was required to record employee meal periods under Wage Order No 9 and although a collective bargaining agreement required the company to schedule lunch periods, the employer did not schedule meal periods, did not include an activity code for them and did not monitor compliance. Finally, evidence showed that the defendant's management pressured drivers to make more than one trip daily, making it harder to stop for lunch. Under those facts, the court found that defendant failed to establish that it 'provided' plaintiffs with their required meal periods."
Indeed, the Brinker Court not only concludes that the decisions cited by the plaintiffs are distinguishable on their facts, but held that those courts only decided meal breaks must be provided, not ensured. The Brinker Court also held "that public policy does not support the notion that meal breaks must be ensured. If this were the case, employers would be forced to police their employees and force them to take meal breaks. With thousands of employees working multiple shifts, this would be an impossible task. If they were unable to do so, employers would have to pay an extra hour of pay any time an employee voluntarily chose not to take a meal period, or to take a shortened one."
The Brinker decision has far-reaching implications for class actions, since it held that "the question of whether employees were forced to forgo rest breaks or voluntarily chose not to take them is a highly individualized inquiry that would result in thousands of mini-trials to determine as to each employee if a particular manager prohibited a full, timely break or if the employee waived it or voluntarily cut it short(citing the Brown decision for its holding that the meal period violations claims were not amenable to class treatment as the court would be "mired in over 5000 mini-trials" to determine if such breaks were provided). This individualized proof makes plaintiffs' rest break claims not amenable to class treatment."
Employers can consider the Brinker decision to be a significant and positive victory that is plainly supported by the language and policy of the statute. However, it is likely that the decision will be appealed (again) to the Supreme Court, so we will post any further developments. Please contact us if you have any questions.