• Erika Frank, general counsel and head of the CalChamber Legal Affairs Department;
• Susan Kemp, senior employment law counsel;
• Gail Cecchettini Whaley, CalChamber employment law editor/staff counsel.

Importance of Brinker

California employers have been watching this case for more than three years. The key issues before the court are:

• Must employers make meal breaks available or must the employer ensure that the meal period is taken?
• When during an employee’s shift must the meal period occur?
• How many rest breaks are required during a shift?
• When must rest breaks be taken?

While the CalChamber and employers statewide have been waiting for a Brinker ruling, California courts of appeal have continued to rule that employers do not have to force employees to take meal periods, but only make them available for employees to take. These decisions have been placed on hold until the Supreme Court resolves the Brinker issues.

CalChamber is reminding employers that despite these decisions, until Brinker is decided, employers must continue to make sure that their employees take these breaks.

Background

In early 2008, class certification for a meal-and-rest period lawsuit was denied by a federal district court, which found that nothing in California law requires the employer to ensure that employees take their meal breaks. The federal district court said the employer need only supply or make such time available to employees (Brown v. Federal Express Corporation 249 F.R.D. 580 (2008)).

Because this was a federal court ruling, however, it did not have an impact on California's rule that employers must ensure employees stop working during their meal breaks. In California, merely providing meal breaks to non-exempt employees is insufficient.

Then, in July 2008, a California Court of Appeal denied class certification for almost 60,000 restaurant employees. Specifically, the court found that:

• Although employers cannot impede, discourage or dissuade employees from taking rest periods, employers need only provide, not ensure, rest periods are taken.
• Employers need only authorize and permit rest periods every four hours or major fraction thereof and the rest periods need not, where impracticable, be in the middle of each work period.
• Employers are not required to provide a meal period for every five consecutive hours worked.
• Although employers cannot impede, discourage or dissuade employees from taking meal periods, employers need only provide the meal periods and not ensure they are taken.
• Although employers cannot coerce, require or compel employees to work off the clock, an employer can be held liable for employees working off the clock only if the employer knew or should have known the employees were doing so.

Because the court found that rest and meal breaks need only be made available and not ensured, the court also found that individual issues predominated, and that these individual issues did not lend themselves to class treatment. Further, the off-the-clock claims did not lend themselves to class treatment because individual issues predominated on the questions of whether employees were forced 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 (Brinker v. Superior Court 165 Cal. App. 4th 25 (2008)).

This case was appealed to the California Supreme Court, which on October 22, 2008, agreed to hear the case.

CalChamber Recommendation

CalChamber recommends that businesses:

• contact legal counsel to ensure that  policies reflect the most prudent practices relating to meal and rest breaks and tracking of employee time;
• always track all hours worked and not worked by all non-exempt employees; and
• make sure supervisors and managers consistently enforce the business’ policies and procedures, in particular, as they relate to meal and rest breaks for non-exempt employees.