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Monday, November 2, 2015

The Brinker Case – The Meal Period Obligation

After three years of waiting, the California Supreme Court has finally rendered their decision in the case of Brinker Restaurant Corporation v. Superior Court. This has been a highly-anticipated decision in that it was to provide much-needed clarification regarding the extent of an employer’s obligations to provide rest and meal periods to their employees.

The widespread confusion on this issue has resulted in a tidal wave of class-action litigation against employers. More often than not, these companies believed they were in compliance, but nonetheless found themselves embroiled in expensive litigation.  Hopefully, this decision will stem this tide and provide all parties with workable guidelines as everyone enters the post-Brinker era.

For purposes of this letter, our focus will be on the Courts ruling as to the extent of the employer’s duty to provide meal periods to their employees. We will examine the Court’s decision on this issue and provide suggestions as to how employers may protect themselves in the future.

At first blush, the law seems clear enough. Under California Labor Code §512, the 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”.  For employees working unusually long days, the same Labor Code section provides that the employer cannot require their employees to work “. . . more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes. . .”

Unfortunately, this language and that in the corresponding Wage Orders resulted in confusion regarding their true meaning and in the legal world, there is a direct relationship between confusion and the quantity of litigation it engenders. In this case, the dispute boiled down to two major issues:

  1. how far must an employer  go in order to ensure the meal period is taken; and
  2. is the second meal period required  to be taken no more than five hours after the first one was taken or only after ten hours of work in the same workday.

On the Plaintiff/Employee’s side, the contention was that there was an affirmative obligation on the part of the employer to ensure that the meal period was taken. According to this argument, because of the potential for abuse by unscrupulous employers, the employee could not, and should not, be given any discretion as to if and when the meal period was taken.  The employer was required to essentially guaranty that it was taken and that it be taken at the appropriate time.  As to the second issue, Plaintiff/Employee  claimed that the statute requiring  a first meal period within  the first five hours of work and a second meal period within the first ten hours of work created a “rolling’ requirement of a meal period every five hours.  In other words, if the employee took their first meal period after having only been at work two hours, they would be entitled to a second meal period  within five hours after the first was taken or after only seven (7) total hours for the day. This interpretation would have required that a second 30 minute meal period be taken during an eight hour shift.

On the employer’s side, the argument was that requiring the employer to ensure that meal periods were taken was simply too great a burden to meet. With possibly hundreds of employees, some of whom are working in remote locations, it is impossible to ensure everyone is taking their meal period and doing so in a timely manner. It would almost require the addition of “meal period police” to patrol the workplace to ensure that everyone was eating their lunch. As to the second issue, the defendant/employer’s position was that there was no rolling five-hour rule. The second meal was due before the tenth hour was reached, regardless of when the first meal period was taken.

In a decision that is generally seen as very beneficial to employers, the Court held that there was no affirmative obligation on the part of the employer to ensure that the meal period is taken. The employer satisfies their obligations under Labor Code §512 and the applicable wage orders by providing a meal period in which the employee is relieved of all duty for an uninterrupted 30 minute period. Employers need not ensure that employees in fact take their meal breaks, nor need they monitor employees to ensure that they do no work during the meal period.

Regarding the second issue the court held that there was no obligation to provide meal periods on a rolling basis, and went on to provide guidance on the timing of both the first and second meal periods:

  1. The first meal period must be no later than the end of an employee’s fifth hour of work;
  2. Provide the second meal period no later than the end of an employee’s tenth hour of work.
  3. The first meal period may be waived by mutual consent of the employee and the employer, if the employee works no more than six hours on the day in question.
  4. The second meal period may be waived, but only if the first meal period was not waived; and the employee works no more than 12 hours on the day in question.

Although some may have held out hope that the Brinker decision would absolve the employer of any responsibility for meal periods, this was an unduly optimistic belief. It is still critically important that all California employers communicate to their employees their right to take the meal period and ensure that their policies follow the guidelines provided by the Court. Avoid taking any action that would appear that you are discouraging or impeding employees from taking their breaks. Be sure that your management personnel are familiar with these requirements and are periodically checking to ensure that the actual practices are following the law.  Confirm that your employees are still recording their meal periods, that those meal periods are at least 30 minutes in length and that the employee is truly relieved of all duties. You don’t want any “working off the clock” during the meal period or any other time during the day. Brinker provided both guidance and some measure relief to employers. However, it is still the employer’s responsibility to ensure the law is being followed and vigilance remains the order of the day.

Article Written by: Brett L. Dickerson, Esq.


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