Analyzing Brinker

November 17, 2011  |  From HRCalifornia Extra

Earlier editions of HRCalifornia Extra reported that oral arguments in the case of Brinker v. Superior Court were scheduled before the California Supreme Court on November 8, 2011.

The Brinker case is extremely important to all California employers because it involves employers’ obligations relating to meal and rest breaks. The court’s decision could affect thousands of workers statewide.

This HRCalifornia Extra will give more context to the arguments from the attorneys representing the employees and Brinker. However, it should be noted that the court’s questioning and the direction of those questions does not always lead toward the ultimate decision of the court. Therefore, our analysis below is based entirely on our observations and how we perceived the court’s questioning.

The court, in its questioning of the attorneys making the oral arguments, did not seem inclined to enact a rule that would require supervisors to monitor employee’s meal and rest breaks. Instead, the court appeared friendly toward the idea that employers must provide the breaks to employees but do not have to ensure that employees take them.

This issue is one of extreme importance to California employers: must employers act as the "meal break police" to make certain that these breaks are taken and for the appropriate length of time? Or is it enough if the employee is permitted to take the break, whether he or she decides to do so or not?

Case Summary

Employees of Brinker International, Inc. (Brinker), the parent company of Chili’s restaurants and other restaurant chains, filed this class action lawsuit eight years ago. Class action lawsuits over meal and rest breaks are common in California. The heart of the lawsuit is that Brinker failed to provide its employees with their legally mandated breaks. The case was certified as a class action and involves nearly 60,000 employees.

The employees claimed that Brinker had a consistent and common policy of:

  • Requiring employees to work through meal periods and/or to work at least five hours without a meal period
  • Requiring employees to work through rest periods and failing to provide rest periods of at least ten minutes per four hours worked

Brinker countered that it made meal periods available to employees at the appropriate time and that it was not obligated to force an employee to take the meal period if the employee chose to work through lunch. Brinker also argued that it appropriately provided rest breaks.

Brinker required employees to sign a form which contained the following provisions:

  • "I am entitled to a 30-minute meal period when I work a shift that is over five hours."
  • "If I work over 3.5 hours during my shift, I understand that I am eligible for one ten-minute rest break for each four hours that I work."

Brinker’s policy stated that employees are responsible for clocking in and out for each shift and that employees could be disciplined for failing to follow the meal and rest break policy.

Court Questions Forcing Employees to Take Meal Breaks

During the oral arguments, questioning by the justices was focused on the "provide vs. ensure" debate. Labor Code Section 512 states: "An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes."

Plaintiff’s counsel, Kimberely Kralowec, was mere sentences into her argument when Justice Kennard jumped in and noted that the statute uses the term "provide." Some justices, Justice Kennard in particular, indicated that they felt the word "provide" in the statute means "make available," not ensure. Justice Baxter also noted that the plain language of the statute uses the word "provide," while the Wage Orders issued by the Industrial Welfare Commission do not.

Allowing employers "flexibility" was a common theme. Justice Kennard wanted to know how employers can ensure that hundreds of workers take meal periods. "Let's assume one has hundreds or even thousands of employees," Justice Kennard said. "How is an employer going to ensure each of these hundreds of workers or thousands of workers is actually taking a meal break? Why not give some flexibility?"

Kennard raised the example of a nurse who in the middle of trying to save a patient’s life is told that he or she has to take a meal break.

Brinker’s counsel, Rex Heinke, told the court that the fight in this case is precisely over the issue of flexibility.

The justices peppered plaintiff’s attorneys with questions about how managers could force employees to take the meal period and if an employer could fire employees who refused to do so. Some justices appeared hesitant to adopt an argument that could put an employer in the position of firing an employee who chooses to work through his or her meal break.

Justice Goodwin Liu seemed concerned with a rule that would force a break on an employee who wants to work through the break or who wants to work through the break for any number of personal reasons, including just enjoying the job. Justice Liu asked the following questions:

  • "Isn't the hallmark of a meal period that the employer is essentially supposed to suspend control over that employee?"
  • "Isn't the most worker-friendly interpretation of this is that the worker should be able to do whatever he or she wants during a meal period?"

None of the answers from plaintiff’s counsel seemed to satisfy the court.

Timing of the Meal Break

In addition to the "provide vs. ensure" debate, there was a great deal of questioning on the timing of the meal break. On this issue, the court’s questioning indicated some support for a "rolling five-hour" rule. Under such a rule, the employer will be obligated to make the meal period available for every five consecutive hours of work.

Justice Liu posed the following hypothetical of an employee who works a shift between 9 a.m. to 6 p.m. and takes a lunch at 12:30 p.m. This would leave the employee with 5.5 hours remaining to finish the day. Justice Liu’s questioning indicated he was leaning toward a conclusion that the employee would be entitled to a second meal break for the remaining 5.5 hours of work.

Labor Code section 512 provides: "An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than thirty minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."

Employers commonly interpreted this statutory language to mean that, in Justice Liu’s hypothetical, a second meal period is not required because the employee did not work more than 10 hours per day. But, under the rolling five-hour requirement, a second meal break would be required because a consecutive five-hour period was worked.

Brinker’s counsel argued that nothing in the statutory language suggests that meal periods must be provided at a certain time. Brinker’s counsel argued that employers should have flexibility over when meal periods are taken and that some employees, for instance wait staff, would rather work during a busy stretch than take a meal period, in order to receive better tips.

If the rolling five-hour rule is adopted, a policy of allowing early or late meal breaks will no longer work and employers will need to schedule meal breaks close to the middle of each shift. This may lead to a multitude of scheduling problems for employers.

Decision in the Next 90 Days

The oral arguments also briefly touched on other issues, including: the number of rest breaks required during a shift and the timing of the breaks; and whether meal and rest period issues can be decided on a class basis.

After nearly an hour of argument, the state high court took the case under submission. The court has 90 days to issue a decision. This means that a ruling can be expected on or before February 6, 2012.

Best Practices

Until a final decision is reached, employers are cautioned to:

  • Consult with legal counsel before permitting any flexibility with regard to meal and rest periods. This includes any requests by employees to forego their rest or meal period, take it later in the day, or combine meal and rest periods.
  • Track all hours worked and not worked by all your nonexempt employees
  • Consistently enforce your policies and procedures, in particular, as they relate to meal and rest breaks for nonexempt employees