Employment Law Commentary - April 2012

The Post-Brinker Workplace – What Every Employer Should Know

This month the California Supreme Court announced its long-awaited decision in Brinker Restaurant Corporation v. Superior Court,1 holding that employers must provide their nonexempt employees uninterrupted 30-minute meal periods, but need not additionally ensure that the employees take them. But in addition to finally deciding the headline "provide v. ensure" issue that has exposed employers to countless class action lawsuits over the last decade, the Court decided a number of other important meal and rest period compliance and timing issues. And on the all-important question of whether meal and rest break claims can be litigated classwide, the Court addressed several critically important issues that will guide future trial courts in deciding whether or not to certify wage and hour lawsuits as class actions. Here are the key takeaway points from Brinker and what they mean for California employers. Meal Periods Must Be Provided, Not Ensured.

The marquee issue in Brinker was whether employers must provide their non-exempt employees uninterrupted 30-minute meal periods, as Brinker contended, or additionally ensure that the meal periods are taken, as the Brinker plaintiffs argued. Agreeing with Brinker, the Supreme Court held that "[a]n employer's duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so."2 "On the other hand," the Court said, "the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b)."3

The Court declined to specify what is enough to satisfy an employer's obligation to provide meal periods in a particular workplace. Rather: "What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law."4 But regardless of the industry, at a minimum employers should have a written compliant meal period policy that is disseminated to its non-exempt employees in a manner calculated to ensure the employees are fully aware of the policy and...