Employment Law Update- Brinker Decision Released
Flores Financial Services
 On April 12, 2012 the California Supreme Court issued its long-awaited opinion in Brinker Restaurant Corporation v. Superior Court (Hohnbaum), holding that an employer's obligation with respect to meal periods is to relieve an employee of all duty, but does not include prohibiting an employee from working.  Additionally, the courts stated that an employer's obligation is simply to provide a first meal period after no more than five hours of work, and a second meal period after no more than 10 hours of work, and that there are no other meal period timing requirements. A copy of the court's opinion can be downloaded here.

The main issue in Brinker was the nature of an employer's obligation to "provide" a meal period as set forth in Industrial Welfare Commission (IWC) Wage Order No. 5 and Labor Code section 512.  The plaintiff, Adam Hohnbaum, argued that an employer is obligated to "ensure" that an employee takes a thirty-minute, uninterrupted meal period for each shift that exceeds five hours.  Defendant Brinker contended that an employer is obligated only to "make available" these meal periods, but need not prohibit an employee from working.

The California Supreme Court agreed with Brinker, holding that an employer's duty with respect to meal periods is satisfied if "the employer relieves its employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so".  The court further explained that an employer is not obligated to police meal periods in respect to what the employee choses to do during that break and ensure that employees perform no work, and that an employee's voluntary choice to work during a meal period does not constitute a violation by the employer of its obligations under the meal period laws.

In addition to adopting the "make available" standard, the court also addressed the timing of meal periods. The court explained that under both the wage orders and the Labor Code, an employer's obligation is simply to provide a first meal period after no more than five hours of work, and a second meal period after no more than 10 hours of work, and that there are no other meal period timing requirements. Additionally, while an employer must, "insofar as practicable," authorize and permit rest breaks in the middle of each work period of four hours "or major fraction thereof," the employer may deviate from that preferred timing where it is not feasible due to practical considerations. Finally, employers are no longer required to ensure that their employees take to a rest break before any meal period as long as they are made available to them throughout their shift.

What This Means

This ruling provides welcome relief to employers, especially those in the restaurant industry.  Employers are cautioned, however, that this decision is unlikely to bring an end to meal period litigation. While many sources are stating that employers do not have to ensure that employees take their meal breaks but must merely make them available, please remember that the burden of proof lies with the employer. The employer will be responsible for proving on a daily basis that a meal break was made available to the employee and the employee chose not to take it or preferred to take it after 6 hours. As Justice Werdegar emphasized in a concurring opinion, meal period cases may still proceed as class actions where there is sufficient evidence of a common practice of failing to make meal periods available.  The concurring opinion states that when time records show that no meal period was taken, the burden will be on the employer to prove that it relieved the employee of all duty and that the employee's choice to continue working was truly voluntary.

For this reason, we advise employers to remain cautious in their practices and to proceed conservatively for now. The safest way to move forward is to ensure that employees take their meal break before the fifth hour of their shift (unless if six hours will complete their shift and they have signed a meal break waiver) until further clarification has been provided from the legal field. We suggest that employers consult with legal counsel prior to allowing employees to waive their meal breaks altogether or to take them after the fifth hour.

This is a good time for employers to review their policies and practices with respect to both meal periods and rest breaks.  Specifically, employers should ensure both that they are providing all required breaks, and that employees are aware of their right to take them.  Employers should also be prepared to prove that they have authorized and permitted employees to take breaks in the event that an employee claims the employer did not do so. 



For more information about any of the topics discussed above, please feel free to contact Sarina Flores or Nicollette Donato in Flores Financial Services' Human Resources Department at (619) 334-7010.