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Brinker Decision Analyzed

California Landmark Decision April 2012

In a case that will undoubtedly affect thousands of workers statewide, the California Supreme Court issued its ruling today in Brinker v. Superior Court, a wage and hour class action filed by employees of Brinker International, Inc., the parent company of Chili’s restaurant. This is the first in a series of articles by Call & Jensen discussing the Brinker decision and its impact on employers.

MEAL PERIODS – No Duty To “Ensure” Employees Take Meal Periods

The lawsuit largely centered on the language of Labor Code section 512 that states: “An 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.”

Before today, the unresolved issue before the California Supreme Court was the meaning of the word “providing.” Does an employer have to ensure that an employee has to take a meal period? Or does the employer meet its obligation if the employer makes the meal period available to the employee?

The California Supreme Court concluded that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” The Supreme Court reversed and remanded for consideration of whether class certification is appropriate.

REST BREAKS – Common Questions Predominate If Employer Has A Uniform Policy That Fails To Authorize All Permitted Rest Breaks

The Supreme Court held that the trial court did not abuse its discretion in certifying a rest period subclass because Plaintiffs had presented substantial evidence of “a uniform rest break policy authorizing breaks only for each full four hours worked.”

Brinker’s uniform policy did not authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight hours. The Supreme Court rejected the reasoning of the Court of Appeal that because rest breaks may be waived proof of violations must be based on individualized proof. The Supreme Court held that: “No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”

Per the Supreme Court, “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.”

TIMING – No Rolling 5-Hour Rule

Another critical issue before the Supreme Court was the timing of meal periods, specifically whether the wage orders require that a meal period be provided after five consecutive hours of work. In other words, does the statute prohibit the practice of “early lunches” – that is, requiring an employee to take his or her lunch break early in the shift and/or start the clock running on a second 5 hour period? With regard to these issues, the California Supreme Court ruled as follows:

  • A first meal period must start no later than after 5 hours of work.
  • A second meal period must be provided after no more than 10 hours of work in a day, i.e., no later than what would be the start of the 11th hour of work, absent waiver.
  • There is no “rolling 5 hour rule.” Other than the above requirements set forth in Labor Code section 512 and the wage orders, there are no additional timing requirements.

OFF-THE-CLOCK – No Substantial Evidence That Common Questions Predominated

Finally, the Supreme Court held certification was not proper for an off-the-clock subclass. Plaintiffs had contended Brinker required employees to perform work while clocked out, or that their work periods were interrupted. Unlike the rest break claims, however, Plaintiffs did not proffer a common policy alleged to be inconsistent with the Labor Code. In fact, the only policy at Brinker expressly prohibited off-the-clock work – as do most company policies. Moreover, there was no evidence of a systemic policy to pressure employees to work off-the-clock. Notably, the Supreme Court also stated that when employees are clocked out “there is a presumption they are doing no work.”

Please look for further updates from Call & Jensen on the impact of the Brinker decision.FOR MORE INFO CONTACT GINA MILLER