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	EMPLOYMENT LAW UPDATE: California Appellate Court Confirms Employer’s Interpretation of Rest and Meal Break Requirements and Vacates Class Certification Employment/Labor  By Teresa R. Tracy In one of the few victories that California employers have had in wage and hour cases, a California appellate court has confirmed most employers’ interpretation of the state rest and meal break requirements. It thus vacated the class certification order on these issues, finding that any violation would require individualized assessment of the evidence. [Brinker Restaurant Corporation v. Superior Court, Fourth Appellate District Case No. D049331, October 12, 2007]. In this class action brought on behalf of 59,000 restaurant workers against Brinker Restaurant Corp., the operator of the major chains Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy restaurants, the employees claimed that they were not getting the state-mandated rest or meal breaks. The lower court had certified issued a class certification on these claims. Rest Breaks State wage orders require that Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall 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. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. The employer’s written policy was that an employee who worked over 3.5 hours during a shift was eligible for one 10-minute rest break for each four hours that the employee worked. The employees contended that the law required (1) a 10-minute rest break for every 3.5 hours of work, and (2) a rest break before the first meal period. The court upheld the employer’s interpretation, noting that (a) the wage order plainly provides for a 10-minute rest break “per four (4) hours or major fraction thereof,” not one for every 3.5 hours of work; (b) the wage order states only that the rest break “insofar as practicable” is to be in the middle of each work period, and (c) the wage order is silent on whether an employer must permit an hourly employee to take a rest break before the first meal period is provided. The employees also argued that the employer “discouraged” rest breaks, including requiring servers to give up tables and tips if they wanted a rest break. The court went on to state that it would take an individualized assessment to determine the practicality of scheduling a rest break in the middle of each work period. It also noted the individualized nature of the inquiry into whether the employer violated the law when employees missed rest breaks or took shortened rest breaks, recognizing that any employee can, on an individual basis, waive a rest break. The court thus concluded that the class certification order rested on improper criteria and incorrect assumptions with respect to the rest break claim, and vacated this portion of the class certification order. Meal Breaks State wage orders require that No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. State law also prohibits an employer from working an employee for more than 10 hours per day without providing the employee with a second meal period of not less than 30 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. The employer’s policy stated that employees are “entitled to a 30-minute period” when they “work a shift that is over five hours,” and that employees who clocked out for a meal period “must clock out for a minimum of 30 minutes.” The employees contended that the employer often required employees to take a meal break within the first hour after beginning work, and then required them to work in excess of five hours – and sometimes more than nine hours straight – without an additional meal break. The employees argued that the wage order requires a rolling five-hour period, and that they were entitled to a meal break for every five consecutive hours of work. They also argued that the employer was responsible for ensuring that each employee got the required meal break. The court rejected the employees’ position with respect to the rolling work period, noting that the result of adopting that position would require an employer to “reset the clock” for meal periods when an employee returned from the first meal period even if the employee did not work more than 10 hours in the day. Thus, because the lower court had based its class certification as to this issue on a faulty interpretation of the law, the certification order was vacated. With respect to the argument that an employer is required to ensure that an employee take a meal break, the court characterized the issue as one of first impression. It noted that the lower court had not specifically addressed this issue when certifying the class. It also cited the recent case of White v. Starbucks Corp. (N.D. Cal. July 2, 2007) 497 F.Supp.2d 1080, in which the federal district court predicted that the California Supreme Court would require only that an employer offer meal breaks, without forcing the employer to actively ensure that workers are taking these breaks. Thus, the appellate court in Brinks vacated the class certification on this issue and remanded the case for further consideration of the issue of employer responsibility to ensure that an employee takes a meal break. Off-The-Clock Claims The plaintiffs also alleged that employees were required to work off-the-clock and that the employer “shaved” time from its records in order to reflect less than a five-hour shift. The appellate court found that the lower court had not indicated in its order any evidence that it examined what elements the members of the proposed class would have to prove in order to prevail on this claim. Accordingly, the class certification order on this issue was also vacated and remanded for further consideration. Impact on California Employers Although most California employers have been interpreting the state law and wage orders in the same manner as the appellate did with respect to the number and timing of rest and meal breaks, certainly an adverse decision would have wreaked havoc and spawned countless new class actions across the state. Thus, this decision allows employers to breathe easier in this regard. It also signals the willingness of at least one appellate court to consider anew whether an employer has the obligation to actively require – and police – meal breaks. Lastly, it may indicate a swing in the seemingly unbridled enthusiasm of the stated courts to certify class actions. Unfortunately, this decision is currently unpublished and thus cannot be relied upon by other courts as precedent. Hopefully, given the important nature of the court’s ruling, the appellate court will decide to publish the case. ******** For more information on the Alert or any other employment-related topic, please feel free to contact Teresa R. Tracy or the attorney with whom you regularly work. This Alert is published as a service to our clients and friends. It is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice. ©2007 Berger Kahn, A Law Corporation. All Rights Reserved. Back
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