Legal Lectern: Brinker Lives!

Jay Luther

Law Offices of Jay W. Luther

jluther@lutherlaw.com

It’s hard to believe, but the Brinker Restaurant case, which has drifted through the corridors of the California Supreme Court like the Ghost of Christmas Future for some three years now, has finally been decided. With the decision, we really do have some definitive answers on how California’s wage and hour rules should be administered. So with no further ado, let’s see what it means.

First, a quick refresher course in rest and meal break law. Assuming the usual eight hour

day, all non-exempt employees are entitled to a ten minute paid rest break in both the first half

and the second half of the shift, preferably "in the middle of each work period." On meals,

assuming the shift is at least five hours, employees are likewise entitled to a 30 minute unpaid

meal break. Both meal breaks and rest breaks are mandatory, and the employer must pay the worker “one hour of pay at the employee’s regular rate of compensation for each workday”– premium pay– for lost breaks.

Beyond this, the Division of Labor Standards Enforcement (DLSE), in its Enforcement Manual, has said that “it is the employer’s burden to compel the worker to cease work during the meal period.” One central issue in the case was whether this coercive view was correct, or whether an employer could comply with the law without dragging the employee screaming from her desk when the clock strikes noon.

The Court starts with a straightforward characterization of what rest breaks are required: “Employees 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.” Easy.

When should such breaks occur? “The only constraint on timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable.’ 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.” Pretty flexible. In addition, “in the context of an eight-hour shift, ‘[a]s a general matter,’ one rest break should fall on either side of the meal break. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.”

So what happens when the employee declines to take a rest break? Interestingly, both sides in the case thought that the employee could waive a rest break, and the Court did not suggest they were wrong, even though it insisted the employer was required to allow the breaks. It stated, “An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable.” Thus, if an employer has a bad policy– which prevents an employee from taking the breaks required by law– the employer is stuck.

On the timing of meal breaks, the Court gives us a simple bright line: “[the statute] requires a first meal period no later than the end of an employee’s fifth hour of work [in an eight hour day], and a second meal period no later than the end of an employee’s 10th hour of work [in a longer day].” Even a lawyer can understand that simple a rule.

As to what the requirements are for a meal break, that rule is also clarity itself. The Court summarizes thusly: “An employer’s duty with respect to meal breaks . . . 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.”

And it then adds what employers have been waiting three years to hear: “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. . . .”

Hooray! We won! Well, sorta. There are a couple of significant kickers.

Let’s take a worker, by hypothesis far behind in her work, who decides to stay at her desk and catch up. Now Brinker is very clear that merely because “an employer [has] knowledge of employees working through meal periods, [that] will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.” Great! But the Court has a warning for employers, too: “On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.... The [law does] not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.” If the employer does that, premium pay comes back into the picture.

Let’s assume that our hypothetical desk employee who is playing catchup has not been encouraged or coerced, but the employer knows that she is working her fingers to the bone. Here’s what the Court says: “If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’” If you’re like most employers who, quite legally, do not provide a paid lunch break, that straight pay can involve a lot of money over time, even if the total is less than your pre-Brinker exposure.

Friends, there’s going to be a lot of litigation about how to apply Brinker in particular circumstances. Written break policies are going to be scoured by the plaintiff’s bar to see if they follow Brinker’s rules. If your policy’s language is more restrictive than Brinker, expect a class action in your neighborhood soon.

But even if your policy’s language passes muster, your actual employment practices are going to be examined with the proverbial fine tooth comb. Do employees regularly work during their meal breaks, or only rarely? Are you aware of their habits? Could you have been? Have you been reassigning so much work to stay afloat that in the real world workers must log the extra time? And so on.

Next time, we’ll talk about some steps you can take to improve your situation under Brinker. In the meantime, here’s a do it yourself idea: go to whatever wall you have your employee notices posted on, and read the break provisions of your Wage Order– sections 11 and 12. Give some real thought to whether your practices are in compliance. If not, fix them now. Contrariwise, if you think you’re in compliance, party! Well, until the next column anyway– then I’ll probably give you some indigestion even while I dole out the Tums.