Wage & Hour Watch- Rest and Lunch Rules FINALLY to Get Clarified

The California Supreme Court has finally set a hearing in Brinker Restaurant Corp. v. Superior Court (Hohnbaum)(2008) 165 Cal.App.4th 25, which will be argued on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco. For employment lawyers, Brinker is one of the most eagerly-awaited cases on the California Supreme Court's docket, but has languished with the High Court for some time (the petition for review, filed more than three years ago).

The case presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers. In short, the issue is whether an employer need only make such breaks "available," or must the employer "ensure" that such breaks are taken. The 53 page Appellate decision, which essentially came down on the side of "make available" v. "ensure," can be summed up with the following excerpts from the opinion:

Reconsidering the matter following a transfer from the California Supreme Court and our vacating of the original opinion in this matter, we first recognize that "in light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed." (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702.) We also recognize mandatory rest and meal breaks have "have long been viewed as part of the remedial worker protection framework" designed to protect workers' health and safety. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy).) In addition, we note that in construing the applicable statutes and regulations, we look to the plain language of the laws and interpret them in a manner consistent with the Legislature's intent. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.)

With these principles in mind, we conclude ... that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

(Since this matter was/is a Class Action case, the Court also noted that "off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether [the employer] forced employees to work off the clock, whether [the employer] changed time records, and whether [the employer] knew or should have known employees were working off the clock" and thus struck down class certification.)

The reason for the Supreme Court review is that there appears to be a clear "split of authority" on this issue. In Cicairos v. Summit Logistics, Inc., the California Court of Appeal stated that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty.” [Cicairos v Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962]. It has been contended that this means that employers have an affirmative obligation to force employees to take their meal periods and that employees cannot refrain or refuse to take their meal periods.

Following the Supreme Court's acceptance of Brinker for review, the DLSE issued an October 23, 2008 memo to its enforcement staff that provided that the DLSE would enforce the "available" rather than "ensure" standard, stating:

"As the federal court in Brown v. Federal Express Corporation explained:

It is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. (249 F.R.D. 580, 585 (C.D.Cal. 2008)).

In addition, numerous, other federal courts in California have similarly held that employers are not obligated to ensure that their employees take meal periods. They include White v. Starbucks (N.D.Cal. 2007) 497 F.Supp.2d 1080; Perez v. Safety-Kleen Systems, Inc. (N.D.Cal. July 28, 2008) 2008 WL 2949268; Kenny v. Supercuts (N.D.Cal. June 2, 2008) 2008 WL 2265194, Salazar v. Avis Budget Group (S.D.Cal, July 2, 2008) 251 F.R.D. 529; Kimoto v. McDonald’s Corp. (C.D.Cal. August 28, 2008) 2008 WL 4069611; and Gabriella v. Wells Fargo Financial, Inc. (N.D.Cal August 4, 2008) 2008 WL 3200190.

Given that the Supreme Court typically has 90 days from oral argument to issue its decision, we can probably expect a definitive resolution of this key "wage and hour" issue by January 2012.