California Supreme Court Rules In Favor Of San Francisco Employers Regarding The Scope Of Their Meal Break And Rest Break Duties

April 16, 2012

By Antonio P. Garcia, Jr., Esq.

As discussed in my previous post, the California Supreme Court heard argument in Brinker Restaurant Corporation v. Superior Court (Hohnbaum), No. S166350 (Apr. 12, 2012). Brinker involved the issues of whether employers in the housekeeping industry were required to prevent their hourly employees from working during meal breaks, and whether such employers must provide those employees with rest breaks and meal breaks at specific times during the workday.

On April 12, 2012 the state's high court issued its unanimous opinion in the case, authored by Associate Justice Kathryn Werdegar.

Meal Breaks: Employers Are Not Required To Police Their Employees

As suggested by the comments and questions of the justices during oral argument, the California Supreme Court ruled that "under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work." Hence, the employer only would be required to relieve the employee of all duty during the meal break. It would be the employee's choice on how to spend that break, and the employee could even choose to work during that break. Under the relevant labor laws, an employer could satisfy its meal break obligations if the employee had at least thirty minutes uninterrupted, was free to leave the premises, and was relieved of all duty for the entire meal break period.

The court explained that the plaintiffs' position--that an employer must assure that the employee did not perform work during the meal period--was at odds with the statutory language, the Industrial Welfare Commission (IWC) wage order language, and the underlying policy for providing the meal break:

"The difficulty with the view that an employer must ensure no work is done--i.e., prohibit work--is that it lacks any textual basis in the wage order or statute. While at one time the IWC's wage orders contained language clearly imposing on employers a duty to prevent their employees from working during meal periods, we have found no order in the last half-century continuing that obligation. Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time."

The California Supreme Court also noted that employers had three choices regarding lunch breaks for employees who worked at least five hours per day: afford an off duty meal period, obtain consent to a mutual waiver if the shift is no more than six hours, or obtain a written agreement to an on-duty meal period if circumstances permit. If an employee continued to work after the employer relinquished its control, then the employer would be liable for regular wages "only when it 'knew or reasonably should have known that the worker was working through the meal period.'" Hence, an extra hour's wage would not be owed when the employer relinquished control but the employee decided to continue working.

In addition, the court warned that employers and employees should not act in ways to undermine meal break policies. The court warned employers that they could not pressure employees to skip breaks or encourage them to skip the breaks through other incentives. The court also warned employees that they could not manipulate the use of the meal breaks to create liability. Employers and employees, therefore, should not abuse the meal break policies to exploit each other for gain.

In summary, the California Supreme Court held:

"An employer's duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.

On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b)."

Meal Breaks: No "Rolling-Five-Hour" Breaks

Next, the California Supreme Court discussed when employers must provide the meal breaks during a workday. The plaintiffs contended that employers must provide meal periods every five consecutive hours of work, or on a "rolling-five-hour" basis. As noted in my previous post, during oral argument there appeared to be some disagreement among the justices as to whether the relevant labor laws could be interpreted to require rolling-five-hour breaks. The court confirmed in its opinion that it rejected the plaintiffs' argument.

The court found that the obligation to provide a second meal period would arise only if the employee worked more than ten hours a day. The court concluded that the first meal must be afforded no later than the end of the employee's fifth hour of work, and a second meal period must be provided no later than the end of an employee's tenth hour of work.

Rest Breaks: No Mandatory Rest Break before Any Meal Break

The main issue regarding rest breaks concerned the language in Wage Order No. 5 stating that the authorized rest period time should be based on "the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof." The plaintiffs asserted that "employers have a legal duty to permit their employees a rest period before any meal period." The court rejected this position, stating that there was no such requirement under the wage order's plain language.

The California Supreme Court held that a "major fraction thereof" of a four-hour work period was "any amount of time in excess of two hours--i.e., any fraction greater than half." Hence, under the wage order's calculation "[e]mployees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."

The court also ruled on when rest breaks should be permitted. The court provided a more flexible approach for employers, stating that employers were "subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but could deviate from that preferred course where the practical considerations render it infeasible."

What Employers Must Do After Brinker

The California Supreme Court's decision in Brinker was a victory for employers. The court provided a well-reasoned decision that would assist in protecting employers against claims that they cheated employees out of wages due to lost meal breaks and rest breaks.

In light of the court's decision, employers should consult with attorneys to assure that they comply with the principles articulated in Brinker. Such guidance would include assisting employers in reviewing and revising their break policies, and training nonexempt employees to assure that they know when they could take their meal breaks and rest breaks.