Courts Deal Blow to Meal and Rest Break Rules

January 13, 2009 by Beeson Tayer & Bodine

California’s meal and rest break laws have been the topic of several far-reaching decisions that have appropriately received considerable attention in the past year.

Beginning with the Fourth Appellate District’s decision in Brinker Restaurant Corp. v. Superior Court, and later with the Second District’s decision in Brinkley v. Public Storage, these courts held that employers need not “ensure” that their employees take meal periods, approved the practice of making employees work more than five hours without a meal break as long as the employee gets his break at some point during the work day, and ruled claims for denial of breaks cannot be asserted on a class basis. Following Brinker and Brinkley, a number of federal district courts have followed suit, adopting the reasoning of these decisions.

The California Supreme Court has granted review of both the Brinker and the Brinkley decisions, and they cannot be cited as precedent.

Duty to “provide” but not “ensure” meal and rest breaks. The Brinker court concluded that “meal periods need only be made available, not ensured.” This holding was predicated on a definition of “provide” to mean “to supply or make available.” The Third District had previously held in Cicairos v. Summit Logistics that under the meal break rules “employers have an affirmative obligation to ensure that workers are actually relieved of all duty.” While the two opinions appear to be inconsistent, they can be read to require employers to ensure that conditions exist for employees to take off-duty meal periods. If the Supreme Court does not clarify this issue, we anticipate significant litigation over what it means to “provide” a meal period.

Meal Breaks: Early or Late Breaks are OK, no Rolling Five Hour Rule. Brinker and subsequent decisions found that Labor Code section 512(a) does not require a meal break during the first five hours of a work day that exceeds five hours, so long as the meal break is given at some point during the day. The court concluded section 512 (a) supersedes IWC Wage Order No. 5 which bars the employment of an employee for more than five consecutive hours without providing a meal break.

Note that Section 512 does not apply to agricultural employees and, therefore, in our view, the Brinker ruling regarding rolling breaks is not applicable to agricultural employees.

Meal and rest break claims are not susceptible to class certification. The Brinker court concluded that because employers are not required to police and enforce employee compliance with meal and rest break rules, claims for denial of breaks cannot be asserted on a class basis, because in theory each individual employee may have a different reason for not taking a meal or rest break.

The reasoning in Brinker departs from several other Appellate District rulings, including the First District’s April 2008 ruling in Bufil v. Dollar Financial Group and the Third District’s ruling in Cicairos.

If the Supreme Court upholds Brinker, to proceed on a class basis plaintiffs must make a showing that their employer actively prohibited them from taking breaks.

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