EMPLOYMENT BULLETIN

Supreme Court Issues Brinker Decision

 On April 12, 2012, the Supreme Court issued the long awaited Brinker decision which interprets the meal and rest period rules in California and provides guidance to the trial courts on certifications of class actions in wage and hour cases including whether or not the trial courts are obligated as a matter of law to resolve threshold disputes over the elements of a Plaintiff’s wage and hour claims.

California’s meal and rest period rules are the most stringent in the nation.  The rules carry monetary penalties in the nature of premium pay for employers that do not provide meal and rest periods to their employees according to the rules.

Several issues were determined by the Supreme Court in making their decision and this decision will impact the way in which employers administer meal and rest periods.

As a result, employer policies should be reviewed and revised to be consistent with this decision.

Facts and Summary of Issues Presented:

Brinker Restaurant Corporation owns and operates several restaurants in California. Thus, some of the language of the Court is specific to restaurants and Wage Order 5.

The Plaintiff in Brinker had the following claims:

1.)  Failing to provide rest breaks or premium wages in lieu of rest breaks.

2.)  Failing to provide meal periods or premium wages in lieu of meal periods.

Some sub issues in the case included:

1.)  Providing fewer meal or rest periods than required by the Wage Order.

2.)  Providing a single meal period soon after the beginning of the work, followed by 6, 7, 8 or more hours without additional meal periods.

3.)  Requiring employees to work off the clock during meal periods, engaging in time shaving, unlawfully altering employee time records to mis-report the amount of time worked and the breaks taken.

 The Supreme Court’ s  Interpretation of Rest Period Rules:

The IWC’s language in all of the Wage Orders, except Wage Order 5 and 16 are virtually identical.  It reads,

“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable, shall be in the middle of each work period.  The authorized rest period time shall be based on the total hours worked daily, at the rate of ten (10) minutes net rest time, for four (4) hours worked or major fraction thereof.  However, a rest period need not be authorized for employees whose daily work time is less than three and one half (3 ½) hours.”

In interpreting the above rules, the Supreme Court made the following rulings:

1.)  “Major Fraction.” A “major fraction” means a fraction greater than one half (1/2). In this case, the Court stated that the rest time that must be permitted, is the number of hours worked, divided by 4, rounded down if the fractional part is half (½) or less than half (½) and up if it is more (a “major fraction”) times (x) ten (10) minutes.

Therefore, an employee would receive no rest break time for shifts of two (2) hours or less, ten (10) minutes for shifts lasting more than two (2) hours, up to six (6) hours, twenty (20) minutes for shifts lasting more than six (6) hours, up to ten (10) hours, and so on.   The exception to this rule is if an employee’s total work time is less than three and one half (3 ½) hours no rest period need be authorized.  Thus, the rule is that employees are entitled to ten (10) minutes rest for shifts from three (3 1/2) to six (6) hours in length, twenty (20) minutes for shifts lasting more than six (6) hours, up to ten (10) hours, thirty (30) minutes for shifts more than ten (10) hours, up to fourteen (14) hours, and so on.

2.)    Timing  of  the  Rest  Period.    The  Court  rejected  the  Plaintiff’s  theory  that employers have a legal duty to permit their employees a rest period before any meal period. Thus, according to the Court, the term “insofar as practicable” means that employers have to make a good faith effort to authorize and permit rest periods in the middle of each work period but may deviate from the preferred course where practical considerations render it infeasible.  The Supreme Court gave an example of an employee who worked a six (6) hour shift.  The Court said that the rest period can fall before or after, but there is no compulsion that the rest break be at the two (2) hour mark and the meal break at a four (4) hour mark. The Court generally stated that short, shorter or longer shifts and other factors that render scheduling impractical may alter the general rule that rest periods occur in the middle of each work period.

3.)  Class Certification Issue as Applied to Rest Break Policy.  The Supreme Court stated that Brinker had a common uniform rest break policy that was applicable to all Brinker employees.   The Court stated that if the Plaintiff were able to demonstrate that Brinker had a uniform policy of refusing to authorize and permit a second rest break for employees working shifts longer than six (6) hours but shorter than eight (8) hours, a class was proper.  This is so because claims that allege a uniform policy consistently applied to a group of employees, in violation of wage and hour laws, are of the sort routinely and properly found suitable for class treatment.

Meal Period Issues:

Wage Order 5 states that no employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes.  This language is slightly different from Labor Code Section 512 which states as follows:

“An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.  An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”

The Court ruled as follows with respect to this language:

1.)  The employer’s obligation is to “provide” an off-duty meal period which is an uninterrupted thirty (30) minute period during which the employee is relieved of all duties.

2.)  The Court agreed with the DLSE that the meal period requirement is satisfied if the employee 1) has at least thirty (30) minutes uninterrupted, 2) is free to leave the premises, and 3) is relieved of all duty for the entire period.

3.)  Employers must afford employees uninterrupted thirty (30) minute periods where they are relieved of any duty or employer control and are free to come and go as they please.

4.)  Employers are not required to “ensure” that employees do no work during meal periods.  Instead, the Court stated that the fundamental employer obligation associated with a meal break is to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.

5.)  If an employer engages, suffers or permits anyone to work for a full five hours, its meal break obligation is triggered.

6.)  If an employee works for five (5) hours, an employer has three choices: 1) afford an off duty meal period, 2) consent to a mutually agreed upon waiver if one hour or less will end the shift, or 3) obtain written agreement for an on duty meal period if circumstances permit.

7.)  If an employee continues to work after being relieved of all duty, the employer is not liable for premium pay.  In that situation, it would be liable for straight pay and then only when it knew, or reasonable should have known that the worker was working through the authorized meal period.   Proof that an employer has knowledge of an employee working through meal periods will not alone subject the employer to liability for premium pay. However,  employers  may  not  undermine  a formal  policy  of  providing  meal  breaks  by pressuring employees to perform their duties in ways that omit breaks.  Examples include proof of a common scheduling policy that makes taking breaks extremely difficult or informal anti-meal break policies enforced through ridicule or reprimand.