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Employment Law Alert

April 13, 2012

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At Long Last, Brinker: Important Guidance From the California Supreme Court on Meal and Rest Periods and Class Certification Issues in Wage and Hour Litigation


In a highly anticipated decision largely hailed as a victory for employers, the California Supreme Court, in Brinker v. Superior Court, No. S166350 (Cal. April 12, 2012), clarified employers’ obligations to provide meal and rest periods under California law and provided guidance regarding class certification issues in wage and hour litigation. On the most contentious of the issues raised in Brinker—the nature of an employer’s duty to provide meal periods under California law—the court held that an employer’s obligation is simply to relieve the employee of all duty for the designated period, with the employee free to use the time for whatever purpose he or she desires, but the employer need not ensure that no work is done. Thus, if an employer relieves an employee of all duty, but the employee continues to work, the court held that the employer will not be liable for premium pay. The court cautioned, however, that an employer may not undermine a formal policy of providing meal periods by coercing employees to skip breaks, creating incentives for employees to forego breaks, or otherwise encouraging employees not to take legally protected breaks.

The court also clarified the issue of timing of meal periods. Rejecting the plaintiff’s "rolling five" theory, the court held that California law requires a first meal period to be provided no later than the end of an employee’s fifth hour of work and a second meal period no later than the end of an employee’s 10th hour of work. Thus, for example, an employee provided a meal period after three hours of work is not entitled to take a second meal period after eight hours of work (simply because five hours have passed since the first meal period). Instead, the obligation to provide a second meal period only arises after the employee completes 10 hours of work.

With respect to rest periods, the court both clarified the timing of rest periods and the relationship between rest periods and meal periods. First, the court held that employers must authorize and permit rest periods at the rate of 10 minutes of rest time per four hours or major fraction thereof (defined as more than two hours by the court). Where an employee’s shift lasts less than three and one-half hours, a rest break need not be provided. Thus, the court held that an employee is entitled to rest periods as follows: one 10 minute rest break for shifts from three and one-half to six hours in length, two 10 minute rest breaks for shifts of more than six hours up to 10 hours, three ten minute rest breaks for shifts of more than 10 hours up to 14 hours, and so on. The court also noted that the rest break could come before or after the meal period. Employers must make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that where practical considerations make it infeasible.

Regarding class certification, the court focused on the existence of a common, uniform policy that allegedly violates the law. The court held that plaintiff’s off-the-clock claims (an offshoot of his meal period claims), could not be certified because the only common, uniform off-the-clock policy maintained by the employer was one that prohibited such work, consistent with the applicable law. Plaintiff presented no substantial evidence of a systematic company policy to pressure or require employees to work off the clock. Considering this lack of a common policy, plaintiffs could not show violation of the law by common proof— the plaintiff’s submission of anecdotal evidence of a handful of individual instances in which employees worked off the clock, with or without knowledge or awareness by the employer, was insufficient to prove the claim on a class-wide basis. Conversely, the court held that plaintiff’s rest period claims could be certified because plaintiff submitted substantial evidence of a common, uniform rest break policy that allegedly violated the law (namely, the employer’s policy that denied a second rest break for employees working shifts between six and eight hours long). In sum, Brinker holds that certification is improper in the absence of substantial evidence of a common, uniform policy that allegedly violates the law or a common method of proof.

Based on the court’s rulings, California employers should carefully review their meal and rest period policies and practices to ensure they comport with the guidance provided by this decision. Employers should also consider the following issues raised by Brinker when assessing their policies and practices on a go-forward basis:

  • What does it mean to relieve employees of all duty for purposes of a meal period? Is it the same as "authorizing and permitting" rest periods?
  • If an employee chooses to keep working after being relieved from all duty, what evidence will an employer point to for purposes of showing that the employee was not pressured to continue performing their duties?
  • Given concerns regarding proof, should employers maintain the same level of vigilance over recordkeeping and monitoring as they have in the past, despite the favorable "provide" standard established by Brinker?
  • Should an employer that had established a practice of automatically providing premium pay for time punches reflecting missed or late meal periods (regardless of the reason), suspend that practice given the Brinker decision, or is it wise to continue the practice?

These are challenging questions and Orrick’s Employment Law Group is prepared to assist as you work through these issues. Please reach out to one of our attorneys if you would like to discuss these issues further.

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