Now that the California Supreme Court has accepted review of Brinker Restaurant Corporation v. Superior Court (Hohnbaum), Supreme Court No. D049331 (2008), California employers are hopeful that the Supreme Court will affirm the well-reasoned decision of the Court of Appeal explaining an employer’s obligation to provide meal and break periods, as opposed to ensure that the meal and break periods are actually taken. Opening briefs in Brinker are due to be filed with the Supreme Court on January 20, 2009.

Immediately following the Court of Appeal’s decision in Brinker, the California Labor Commissioner issued a memorandum to all Department of Labor Standards Enforcement staff to follow the rulings in Brinker. When the Supreme Court granted review, the Labor Commissioner withdrew her memorandum, but directed DLSE staff to follow the numerous federal court decisions that concluded that, under California law, it is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. For more information on the Labor Commissioner’s memorandum and citations to the federal cases addressing meal and break periods, see the Littler Mendelson ASAP, California Supreme Court Grants Review to Brinker – Employers Await Answers on Meal Period Obligation (October 2008).

The California Labor Federation, which represents more than 1,200 labor unions in California, protested loudly that the Fourth District Court of Appeal’s decision in Brinker merely created a split with the Third District’s earlier decision in Cicairos v. Summit Logistics Inc. (2006) 133 Cal.App.4th 949. In Cicairos, the court quoted a 2002 DLSE Opinion Letter that employers have “an affirmative duty to ensure that workers are actually relieved on duty.” The Supreme Court declined to grant review in Cicairos, as well as a request to have the opinion depublished. The defense bar and, fortunately, the California Labor Commissioner, read Cicairos as in accord with Brinker that an employer need only provide meal and rest breaks but, on unique facts, found that Summit Logistics failed to make meal and break periods available to its delivery drivers.

More recently, a third California appellate court weighed in. In Brinkley v. Public Storage, Inc., decided October 28, 2008, the Second Appellate District, without citing Brinker (which by then had already been taken by the Supreme Court for review), agreed that an employer need only “authorize and permit” employees to take meal and rest breaks.

In Brinkley, the trial court certified two subclasses, one related to plaintiff’s paystub claims and the other on behalf of all non-exempt property managers who:

• Worked a period of more than 6 hours:
  • Without a meal period of not less than 30 minutes;
  • Without a meal period within the first five (5) hours of work or
• Worked a period of more than 10 hours per day:
  • Without being provided a second meal period of not less than 30 minutes;
  • Without a meal period with the second five (5) hours of work except if:
    • The total hours worked were not more than 12 hours per day;
    • The second meal period except [sic] was waived by mutual consent of Public Storage, Inc. and the employee; and
    • If the first meal period was not waived.

The Court of Appeal concluded that:

•  Nothing in California law requires that the meal period be provided within the first five hours of a shift (of six hours or more);
• An employer is required to provide meal periods, but need not ensure that they are actually taken.

Although no class was certified on the rest period claim, the court did consider the plaintiff’s individual claim that he was not able to take rest breaks. The employer had a written policy that complied with the rest period requirements of the applicable Wage Order, the plaintiff had received a copy of the policy, and the employer had advised the plaintiff and other employees at a meeting that they were required to take rest breaks.

In opposition, the plaintiff submitted a declaration that, although non-exempt, he was “generally the manager on duty and could not take breaks.” The trial and appellate courts agreed that “[t]his is not an unequivocal statement that he was not authorized or permitted to take a ten-minute break every four hours.”

The Brinkley decision provided California employers with another significant victory, holding that employees suing under California's hypertechnical paystub law must prove that they suffered actual injury.  A petition for review of the Brinkley case was filed with the California Supreme Court on December 4, 2008, and it is expected that the Supreme Court will “grant and hold” review pending its decision in Brinker.

The plaintiffs’ wage and hour class action bar continues to file wage and hour cases on a daily basis and it is clear that they will not go down without a fight. Employers should continue to ensure that their meal and break policies comply with California law, that employees are provided the opportunity to take meal and rest breaks, and that time records accurately record meal breaks.

AnnaMary Gannon authored this blog entry.