BREAKS

Employers need only 'provide' (not 'ensure') meal and rest periods

The California Court of Appeal has determined that employers need only make required meal period and rest breaks "available" to employees — you don't have to ensure that employees actually take the breaks. The court also explained that employers have discretion over rest break timing depending on the nature of the work or circumstances of the particular employee and clarified when during the workday the 30-minute meal period should be made available.

Brinker's policies

Brinker operates 137 restaurant locations in California, including Chili's, Macaroni Grill, andMaggiano's. It has precise policies concerning employees properly taking meal and rest breaks. Each employee acknowledges in writing her entitlement to a 30-minute meal period when a work shift is over five hours and to a 10-minute rest break for every four hours worked. Brinker's policy specifically provides that failure to adhere to the policies "may result in disciplinary action up to and including termination."

In addition, Brinker's employee handbook states: "It is your responsibility to clock in and clock out for every shift you work. . . . [Y]ou may not begin working until you have clocked in. Working 'off the clock' for any reason is considered a violation of company policy." The handbook reminds employees that if they forget to clock in or out or if they believe their time records aren't correct, they should notify management immediately so that payroll records may be corrected.

Employees claim Brinker violated law

Brinker's California employees claimed the company violated wage and hour laws by allowing missed rest breaks and meal periods, requiring "early lunching," and knowingly allowing employees to work "off-the-clock." For the rest break and meal period claims, there was no dispute that Brinker's policy permitted employees to take the breaks. However, the employees, on behalf of themselves and 59,000 nonexempt current and former employees, sought class certification of claims that the company failed to ensure employees actually took their meal periods and rest breaks.

The employees further claimed that Brinker's "early lunching" practice (providing meal periods at the beginning of an employee's work shift) violated the requirement that employers provide a meal period for shifts in excess of five hours because the result was working more than five hours following the meal period. (Many employees actually preferred the early lunch because it allowed them to work during peak restaurant meal times when tips were better.) Finally, the employees alleged that Brinker required them to perform work while "off-the-clock" and altered employee time records.

The trial court certified a class action on the claims, concluding they were best handled in a class-action litigation because common issues predominated. However, after the California Supreme Court directed the appellate court to reconsider the trial court's ruling, the appellate court reviewed the Labor Code and Industrial Welfare Commission (IWC) wage order provisions to determine the proper legal standards for the meal and rest break claims. While the employees asserted that Brinker was required to "ensure" that breaks were taken, the company argued that it satisfied its Labor Code obligations by making meal and rest breaks "available." It also asserted that providing early meal periods was sufficient to comply with the requirement that a lunch break be offered to employees who work over five hours per day, even if it meant they worked more than five hours after lunch.

Court's ruling

The appellate court agreed with Brinker that while employers can't impede, discourage, or dissuade employees from taking meal periods and/or rest breaks, they need only provide them, not ensure they're taken. The court relied on the plain language of the applicable California Labor Code sections and IWC wage orders in finding that the employees' interpretation was unsupported by public policy because employers would face an "impossible task" of policing their employees and forcing them to take breaks.

In addition, the court rejected the employees' interpretation of a previous decision that employees frequently cite as placing an affirmative obligation on employers to ensure meal breaks are used. In the previous case, there was evidence that, unlike Brinker, the employer didn't provide meal breaks because lunches weren't scheduled, the employer knew employees were performing work during meals, and management's policies made taking breaks difficult.

The court also sided with Brinker's interpretation of when employers must provide breaks. The court stated that employers only have to authorize and permit rest periods every four hours or a major fraction thereof (i.e., in excess of three and a half hours) and that the breaks don't have to be in the middle of each work period. In fact, the first rest break doesn't have to take place before the employee's meal period.

The court rejected the employees' argument that scheduling a meal period at the beginning of a shift ("early lunching") requires an additional meal period if they work more than five hours following the first meal period. Simply put, you aren't required to provide a meal period for every five consecutive hours worked. You just have to provide a 30-minute meal period for each shift worked in excess of five hours and a second meal period for shifts in excess of 10 hours.

Regarding the employees' "off-the-clock" claims, the court similarly held that while employers can't coerce, require, or compel employees to work off the clock, you can be held liable for employees working off the clock only if you knew or should have known the employees were doing so. Brinker had an express policy prohibiting off-the-clock work, and there was no evidence identifying the reason employees allegedly worked off the clock.

The appeals court tossed out the trial court's order certifying a class action because once the proper legal standards for each type of alleged violation were established, it was clear that individual issues of proof predominated. Employee- specific inquiries were necessary to determine why meal or rest breaks were missed or off-the-clock work was performed. Brinker Restaurant Corp. v. Super. Ct. (California Court of Appeal, Fourth Appellate District, 7/22/08).

Bottom line

You can glean some practical principles from this ruling. First, you should have written meal period, rest break, and off-the-clock work policies. They should advise employees that they're permitted and encouraged to take meal and rest breaks and that performing off-the-clock work won't be tolerated and can result in discipline, including but not limited to termination. The policies should be presented to and acknowledged by employees at the onset of the employment relationship and annually thereafter.

Additionally, nonexempt employees' schedules and work assignments mustn't inherently prevent or discourage breaks. To that end, employee timecards should provide space for recording breaks and include language requesting employees to confirm that breaks were provided and taken during the applicable pay period. All supervisors should be trained on California meal and rest break requirements and monitor employee compliance daily (or at least every pay period).

While this decision is a step in the right direction for employers because it further defines the burden you must undertake regarding meal and rest breaks, it may not be the final word on the issue. The California Supreme Court may still decide to reexamine the ruling.

A day after this decision was issued, Governor Arnold Schwarzenegger took the exceptional step of publicly expressing his support for the court's reasoning and interpretation of employers' meal and rest break obligations. Additionally, three days after the ruling, the labor commissioner instructed the Department of Labor Standards Enforcement to apply the ruling in all pending matters. Further, since February 2007 and as recently as June of this year, the California Legislature has considered various versions of proposed amendments to the meal break statute that are consistent with this ruling.