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April 20, 2012 | Law Alert

Long-Awaited Brinker Decision A Relief For Employers

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After more than three years and two rounds of briefing, the California Supreme Court has issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court. Overall, the decision is a significant win for employers.

Here are the key points in the Court’s unanimous decision:

Employers do not have to police their employees to make sure that they’re taking their meal breaks. They’re required to (1) relieve employees of all duty; (2) relinquish control over their activities; and (3) permit them a reasonable opportunity to take an uninterrupted 30-minute break.

Employers still need a meal break policy and still need to record the time that employees begin and end their breaks. But if employers make the breaks available (as specified in the prior paragraph) and an employee cuts his or her break short (or doesn’t take one), the employer does not owe a penalty. The employer would, however, need to pay the employee for the time worked.

As before, employers have to mean it when they say they’re making the meal breaks available. They can’t pressure employees or provide incentives for them to skip breaks.

There is no rolling five-hour rule. In other words, there’s no penalty if an employee works five consecutive hours without a meal period (as the plaintiffs in Brinker argued). This is a huge relief because, when the Court asked for post-hearing briefing on this issue, it raised the specter that almost every employer in the state had a policy that was wrong.

The following established rules regarding meal periods are not changed by the Brinker decision:

Employees who work no more than five hours get no meal period.

Employees who work over five but no more than six hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the fifth hour.

Employees who work more than six but no more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the fifth hour.

Employees who work more than 10 hours get a second meal period. If they work no more than 12 hours they can waive it. If they don’t waive it, the meal period must begin by the end of the 10th hour.

The rules for rest breaks remain the same:

Employees who work no more than three-and-a-half hours get no rest period.

Employees who work three-and-a-half to six hours get one rest period.

Employees who work more than six and up to 10 hours get two rest periods.

Employees who work more than 10 and up to 14 hours get three rest periods

The Court also commented on the following issues:

“Early lunching” is permitted:

“With respect to the timing of meal breaks, the Court, contrary to expectations, did not impose a rule requiring that a meal break be taken after every five-hour increment of work… The Court, however, did find that employers must provide a meal break prior to the end of the first five hours of any shift of more than six hours. Accordingly, Brinker’s practice of scheduling meals near the beginning of an employee’s shift, but then having the employee work more than five hours without another meal break, did not violate the Wage Order or Labor Code.” (The Brinker Decision and its Impact on Meal and Rest Period Policies and Class Actions by Proskauer Rose LLP)

Employers must provide a second meal break after ten hours of work:

“The Court [ruled] that employers are required to provide a second meal period no later than the end of the employee’s tenth hour of work. The Court stated that the intent ‘was not to impose a different meal period requirement then that spelled out in [the law]; specifically, it did not intend to require employers to provide employees a second meal period no more than five hours after a first meal period.’ Under the law, ‘a first meal period is guaranteed after five hours of work, while a second meal period is required only after 10 hours of work.’ The law imposes no timing requirements as to when the meal break must be provided within each five hour period.” (California Supreme Court Rules in Brinker That Employers Must Provide Meal Breaks – But Need Not Ensure They Are Taken by Duane Morris LLP)

Employees are free to do what they want during their meal break:

“The Court concluded that while employers must relieve nonexempt employees of all duties during meal periods, employers need not ensure that that no work is done by employees during those meal periods. Essentially, the Court concluded that once the employer provides the meal period, the employee is free to use the time as he or she pleases.” (California Supreme Court Issues Unanimous Opinion In Meal Period Case by Hopkins & Carley)

Employers must provide both rest and meal breaks, but not in any particular order:

“Rest breaks and meal periods do not need to be taken in a certain order. The first meal period can occur before the first rest period. However, in the context of an eight hour shift, ‘as a general matter,’ one rest break should fall on either side of the meal period.” (Brinker: California Supreme Court Clarifies Standards for Meal Periods – Steps Employers Should Take Now by Allen Matkins Leck Gamble Mallory & Natsis LLP)

Employees must receive a rest period after three-and-a-half hours of work:

“While a 10 minute rest period must be authorized per four hours ‘or major fraction thereof,’ such a rest period need not be authorized when the total work time is less than 3.5 hours. There had been much debate about what a ‘major fraction thereof’ meant, but the Court definitively held that employees are entitled to 10 minutes ‘rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.’” (CA Supreme Court Finally Decides Brinker: Employers Must Only “Provide” Meal Periods, “Not Ensure” They Are Taken by Ford & Harrison LLP)

Bonus: Review your company’s meal and rest policies:

“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 … [i]f 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?” (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 by Orrick)

Practice Area: Employment
Attorney: Douglas J. Melton, Jonathan R. Rizzardi

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