On April 12, 2012, a unanimous California Supreme Court ruled in Brinker Restaurant Corp. v. Superior Court that employers are not required to police their employees and ensure that employees actually take their 30-minute meal breaks. The Court also ruled that employers are not required to provide 10-minute rest breaks before meal breaks. The Brinker decision is a major victory for California employers.
California Law on Employee Meal and Rest Breaks
As the Supreme Court noted, California law has guaranteed wage and hour protections – including meal and rest breaks – to California employees for the better part of a century. Those laws, which are found in the California Labor Code and the California Wage Orders, generally impose two obligations on employers with respect to employee meal and rest breaks:
- To provide an employee with a paid 10-minute rest period every 4 hours (or major faction thereof) worked, unless the employee’s total daily work was less than 3.5 hours [i]; and
- To provide an unpaid 30-minute meal period for every 5 hours worked, unless the employee’s total daily work was 6 hours or less and the employee had waived her right to the meal period.[ii]
Employers who fail to provide any required meal or rest break to any eligible employee must pay “premium wages” to that employee.[iii] Premium wages equal one hour of pay at the employee’s regular rate for each workday that a meal or break is not provided; thus if both a meal break and rest break were denied on a single work day, the employer would owe the employee for two hours’ of pay for that day.[iv] Moreover, because these payments are wages and not penalties, they are subject to a 3-year statute of limitations.[v]
This meant that employees could sue their employers and claim 3 years of back-due premium wages. Plus, California law also allowed employees to recover attorneys’ fees [vi], interest [vii], liquidated damages [viii], statutory penalties [ix], and civil penalties [x] in addition to their premium wages. In short, an employer mistake on a meal or rest period issue has always been an expensive one.
Pre-Brinker, Employers’ Obligations Were Unclear
Despite the fact that employers had been subjected to these meal/rest break laws for decades, there were many aspects of these laws that were still unsettled. For example, with respect to 10-minute rest breaks, how many hours constitute a “major fraction” of a 4 hour shift? At what point within the qualifying shift is the employer obligated to grant the rest break – does it have to occur in the middle of the shift? Does it have to come before the meal break?
Similarly, with respect to 30-minute meal breaks, what does it mean to “provide” that break – does the employer have to simply offer the break (such that the employee is then free to decide whether to take it or not), or does the employer have to go further and actually ensure that the employee takes her break? Given that meal breaks are guaranteed “for every 5 hours worked,” is that a rolling 5 hours such that the granting of a meal break starts the clock anew? If so, that would mean that an employee who got a meal break in the 2nd hour of work would then be entitled to another meal break by the 7th hour. Is that really what the law requires?
These uncertainties fueled many employee lawsuits, which often resulted in inconsistent verdicts and rulings. One appellate court would rule one way, and another appellate court would rule the opposite way. The result was that employers were left to guess about what the law required. If the employer guessed wrong, the employer paid a hefty price.
It was long past time for these issues to be clarified so that everyone – employers, employees, juries, trial judges, appellate courts, and Deputy Labor Commissioners across the State – knew exactly what the law required.
The Background of the Brinker Case
The dispute in Brinker began in 2004 when a group of cooks, wait staff, host staff, buspersons, and other hourly staff filed a class action lawsuit against Brinker Restaurant Corporation (“Brinker”). The employees claimed that Brinker’s policies effectively prevented them from taking the meal and rest breaks afforded to them by California law. Because Brinker owns and operates large restaurant chains in California, the class of potential claimants was estimated at 60,000 employees. With each employee allowed to go back 3 years, and with each employee allowed attorneys’ fees, interest, liquidated damages, and penalties, Brinker’s potential liability was $100 million or more. Both sides fought hard because so much was at stake. Finally in 2008, after years of rulings and appeals, the California Supreme Court agreed to hear the case and settle the outstanding issues once-and-for-all.
However, for reasons that are still unclear, the California Supreme Court waited more than three years after accepting the case to schedule its oral argument (which finally occurred on November 8, 2011). Finally, five months later – on April 12, 2012 – the Court announced its decision, thus finally clarifying California law with respect to employee meal and rest breaks.
The Brinker Decision
First, the Court reiterated in Brinker that the IWC Wage Orders are the law of the land in California. The Wage Orders “are to be accorded the same dignity as statutes,” the Court ruled. Moreover, as part of larger legal framework that exists to protect employees from abusive employers, the Wage Orders must always be interpreted “in a manner that best effectuates [their] protective intent.”
Second, with respect to 10-minute rest breaks, the Court ruled that the language of the Wage Orders and Labor Code create the following schedule: one 10- minute rest break for shifts from 3.5 to 6 hours; two breaks (or 20 minutes) for shifts between 6 and 10 hours; three breaks (or 30 minutes) for shifts between 10 and 14 hours; and so on.
Third, the Court ruled that employers are not obligated to schedule an employee’s rest breaks before a meal break. The only requirement on employers, according to the Court, is that rest breaks should be scheduled “insofar as practicable” in the middle of a work shift. If “practical considerations” render it “infeasible” for a rest period to occur in the middle of a shift, then the employer may offer the rest break at another time.
Finally, with respect to 30-minute meal breaks, the Court ruled that an employer has three options for satisfying its legal obligations:
- To obtain the employee’s consent to a mutual waiver of the meal break, if the employee’s shift is less than 6 hours (thus, the break time is paid);
- To provide the employee with an off-duty, 30- minute break prior to the end of the employee’s 5th hour of work where the employee is relieved of all duties (thus, the break time is unpaid); or
- To provide the employee with an on-duty, 30- minute break prior to the end of the employee’s 5th hour of work, if the nature of the employee’s work prevents that employee from having an off-duty break and if the employee has consented to this arrangement (thus, the break time is paid). [xi]
Importantly, the Court concluded that an employer’s ultimate obligation is either to secure a waiver or to make the meal break time available. Employers are not required to police the workforce to make sure that employees who are offered meal breaks are, in fact, taking them.
Similarly, employers are not required to ensure that no work is being done during an employee’s meal break. Indeed, according to the Court, “the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duties and relinquish any employer control over how the employee and how he or she spends the time.” If work does continue, the Court ruled, the employer could be liable for regular pay if the employer “knew or reasonably should have known” that the employee was working through his or her meal break. However, the employer will not owe any premium pay to that employee.
Impact on California Employers
With its long-awaited Brinker decision, the California Supreme Court has finally given clear guidance to California employers on how to avoid costly meal and rest break violations:
If your business does not yet employee meal and rest break policies, then adopt them now!
Make sure that your meal break policy is consistent with the Brinker standards:
- Employees who work no more than 5 hours get no meal period.
- Employees who work more than 5 hours but less than 6 hours get a 30-minute meal period unless they have waived it in writing. If not waived, the meal period must begin by the end of the 5th hour.
- Employees who work more than 6 but no more than 10 hours get a 30-minute meal period that cannot be waived. The meal period must begin by the end of the 5th hour.
- Employees who work more than 10 hours get a second 30-minute meal period. If the employee’s work will end before the 12th hour, then the employee can waive that second meal period. If not waived, the second meal period must begin by the end of the 10th hour.
Be sure to include an employee waiver in your meal break policy so that your business is not responsible for providing meal breaks to employees working shifts between 5-6 hours or 10-12 hours. In addition, analyze whether the “nature” of your employees’ work allows them to have an off-duty meal period where they are completely relieved of all duties. If it does not, then include a section in your policy asking employees to consent to an on-duty meal period. While that will cause you to have to pay for your employee’s meal breaks, it will relieve you of future liability for failing to provide the required off-duty meal break (and, thus spare you from having to pay premium pay, attorneys’ fees, penalties, and interest in future litigation).
Similarly, adopt a rest break policy that also complies with Brinker. Make sure that your policy uses Brinker’s exact language – one 10-minute rest break for shifts from 3.5 to 6 hours; two breaks (or 20 minutes) for shifts between 6 and 10 hours; three breaks (or 30 minutes) for shifts between 10 and 14 hours; and so on.
If your business already has employee meal and rest break policies, then ask your employment counsel to review those policies to ensure that each is consistent in all aspects with the Brinker ruling.
Once your business has meal and rest break policies that comply with Brinker, then conduct employee training to ensure that all non-exempt employees understand those policies. Make clear to employees that your business takes its meal and rest break obligation seriously and that it is providing all eligible employees with all required meal and rest breaks. In the event your business is later sued, the fact that you conducted this training – and made employees aware that you were providing all meal and rest breaks – should serve as valuable evidence to insulate your business from liability.
In addition, conduct management training to ensure that all managers implement your meal and rest break policies consistently with the Brinker ruling. Train managers to offer rest breaks to all employees within the time bands set forth in Brinker. In addition, train managers to understand (and, better yet, document) when “practical considerations” make it “infeasible” to offer a rest break in the middle of an employee’s shift. Finally, find and read the Wage Order that applies to your business. You can find all Wage Orders here. Make sure that your business has posted the Wage Order in a prominent location on the premises and is following all of the requirements of the Wage Order.
[i] Cal. Lab. Code §226.7; IWC Wage Orders, Section 12.
[ii] Cal. Lab. Code §226.7 and §512; IWC Wage Orders, Section 11.
[iii] Cal. Lab. Code §226.7; IWC Wage Orders, Sections 11-12; Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1114 (2007).
[iv] United Parcel Service, Inc. v. Superior Court, 192 Cal. App. 4th 1043 (2011).
[v] Cal. Code Civ. Pro. §338; Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007).
[vi] Cal. Lab. Code §218.5
[vii] Cal. Lab. Code §218.6
[viii] Cal. Lab. Code §98 and §1194.2
[ix] Cal. Lab. Code §203 and §226
[x] Cal. Lab. Code §210, §225.5, §226.3, §558, and §1197.1, all of which are now recoverable directly by an employee in a private attorney general action (“PAGA”) pursuant to Cal. Lab. Code §2699 et seq.
[xi] If the employee works a 10-hour shift, the employee gets a second meal period. And the same analysis will apply. That is, if the employee works less than 12 hours, then the second meal period may be waived (but not the first meal period because the work day did not end at 6 hours). If not waived, the meal period must begin by the 10th hour.