|The Brinker Decision: Meal, Rest Break rules clarified by State Supreme Court|
|Friday, 15 June 2012 10:26|
The California Supreme Court recently ruled in the Brinker Restaurant Corp. v. Superior Court (Hohnbaum), Case # S166350, in a case that affects millions of hourly workers by clarifying the meal and rest break requirements for employers.
According to legal advisors this decision does not supplant the Dilts, et al. v. Penske Logistics, LLC, et al., Case No. 08-CV-318 JLS, which is winding its way through the federal courts. Penske won a first round decision using the federal preemption argument under the FAAA Act in 1994, the same underpinning that CCTA is using in its suit against the CARB truck and bus rule.
Brinker Restaurant Corporation operates over 100 restaurants in California (including Chili’s and Maggiano’s). The lawsuit was originally filed by five of its hourly employees who sued, claiming they had been denied meal and rest breaks and forced to work during that time without being paid.
The real question was whether employers had to make sure that employees took their meal and rest breaks as opposed to merely making them available for employees.
Employers complained that supervisors were required to babysit employees and ensure that they not only documented but also took their meal and rest breaks as required by law. Employees complained that they were often forced to clock out for the meal and rest breaks but then were required to perform work-related tasks during the meal or rest break.
The Supreme Court ruled that employers do not have to ensure their employees take their meal and rest breaks, but did not release employers from the requirements.
The Supreme Court made it clear that employers are required to relieve employees of all duties, relinquish control over the employees’ activities and to permit them a reasonable opportunity to take an uninterrupted thirty-minute meal break. The Court held that the employer could not impede or discourage employees from taking the meal or rest break. The potential next wave of lawsuits will undoubtedly be over whether employees were intimidated into not taking their meal and lunch breaks on threat of no promotion or raises, so this issue isn’t over.
The employer must still record the time that employees take off for their meal and rest breaks but do not have to ensure that the employee does not cut his/her meal or rest break short to perform a necessary duty. However, employees who are required to clock back in early are required to be paid straight time for the time worked.
An employer will no longer suffer a penalty for an employee working five consecutive hours without a meal break. Employees who work from five to six hours must get a meal period unless they have waived it in writing. If the employee is entitled to the meal break it must begin by the end of the fifth hour of work. Employees who work from six to ten hours are required to receive a meal break even if they have signed a waiver. Again the meal break must begin by the end of the fifth hour of work. Employees who work over ten hours are entitled to a second meal break but if they work less than twelve hours they can waive (in writing) the second meal break. If the employee works over twelve hours they must receive two meal breaks and the second cannot be waived.
The Supreme Court set forth the standards for rest breaks as well. The Court looked to the Wage Order No. 5-2001 which required that employees receive rest breaks at the rate of ten minutes per four hours or major fraction thereof. This wage order is applicable to restaurants but other wage orders cover other industries with similar requirements for meal and rest breaks. The Supreme Court held that “major fraction thereof” means more than half. Thus, the Supreme Court said that employees are entitled to one ten minute rest break if they work from three and a half to six hours, two ten minute rest breaks if the employee works from six to ten hours, three if the employee works from ten to fourteen hours and four if the employee works for fourteen to eighteen hours.
The Supreme Court rejected the argument by the Plaintiff that a rest period had to come before the mandatory meal break. The Court held that “…employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.”
The upshot of the decision is that if employer makes the break available and the employee chooses not to take it, then the employer, if it knows the employee is not taking the break, will have to pay the employee straight time for the time worked.
In light of the Court’s ruling employers should adopt and enforce a policy requiring employees to clock in and out for meal and rest breaks and the employer should keep the records as they would any other wage and hour records.