This post was also written by Seth C. Carmack.
On April 12, 2012, the California Supreme Court issued its long-awaited decision in Brinker Restaurant Corporation v. Superior Ct. (Hohnbaum), No. S166350. The decision clarified several important issues regarding California employers’ obligations in connection with meal and rest breaks for non-exempt employees. It also offered guidance regarding the certification of meal and rest period wage and hour class actions.
Brinker’s Key Points:
• In general, an employer must provide a non-exempt employee with the opportunity to take a 30-minute, unpaid, off-duty meal period, during which the employee is “relieved of all duty.” However, the employer “need not ensure that the employee does no work.” If an employee is provided a lawful off-duty meal period but still works during it, an employer would not responsible for paying the employee premium pay (an extra hour’s pay) for the meal period, but would be responsible for paying straight time pay for the actual work performed if the employer knew or reasonably should have known that the employee was working during the meal period.
• An employer need not provide a second meal period solely because the employee has worked for more than five hours since the first meal period. Rather, an employer must provide a first meal period after no more than 5 hours of work and a second meal period after no more than 10 hours of work.
• An employer must provide a non-exempt employee at least 10 minutes of paid rest for every four hours of work or a “major fraction.” A “major fraction” of four hours is more than two hours, though there is no obligation to provide a rest break for a scheduled shift of less than 3 1/2 hours. An employee therefore is entitled a paid 10 minute rest break for each shift of more than 3 1/2 hours, scheduled as close to the middle of that shift as is “practicable.” For lengthier shifts, employers must provide 10 minutes of paid rest for shifts of 3-1/2 to 6 six hours, 20 minutes for shifts ranging from 6 hours to 10 hours, and 30 minutes for shifts of 10 hours to 14 hours.
• Meal and rest period claims remain susceptible to class action treatment under certain circumstances. Courts are not always required to resolve legal or factual issues to determine whether class certification is proper, but must resolve legal or factual issues that are necessary to such a determination.
What Brinker Means for Employers:
Employers need to review their policies and procedures to ensure compliance with Brinker’s standards. Suggestions:
• Publish a meal/rest break policy that recites Brinker’s express timing rules and makes clear that all meal periods are duty-free, unless on-duty meal periods are permissible under the relevant Wage Order and are supported by all required documentation.
• Caution managers and supervisors never to interfere with employee rights to take rest breaks and meal periods. Always relieve employees of all duties, and never pressure employees into “giving up” their rest breaks or meal periods.
• Require employees to record their meal periods and report any failure to receive a reasonable opportunity for an uninterrupted meal period.
• Double-check that employees receive pay for actual time spent working during meal periods, including asking employees to report any concerns or questions.
• Monitor, subject to satisfaction of any privacy and bargaining obligations, to ensure policy compliance by all employees, managers and supervisors.
More information on Reed Smith’s Wage and Hour Practice is available here.