Background.  In the July 25 issue of Compliance Matters, we reported on a new California Court of Appeal decision which was very favorable to employers.  In the Brinker Restaurant case, the court of appeal ruled that California employers "need only provide" meal periods and "not ensure they are taken."  The Brinker court also held that the California Wage Orders do not dictate when meal periods are to be taken during the course of a shift.  Thus, the court ruled that "employers are not required to provide a meal period for every five consecutive hours worked."  Employee advocates had argued for a much tougher standard which would have required employers to guarantee that employees actually take each and every meal period, that the meal be taken during the middle of the shift (such as after the third and before the fifth hour of an eight hour shift), and that a meal break had to be offered for every five hours worked.

The court of appeal also ruled that these types of cases ordinarily will not be amenable to class action treatment and that employers will be liable for "off-the-clock" work only if it could be proven that the employer "knew or should have known" that such work is going on.

What's New?  On Wednesday of this week, the California Supreme Court agreed to review the court of appeal decision.  By taking the case, employers can no longer rely upon the Brinker court of appeal decision.  The Supreme Court could easily take a year or more before it renders a decision.

In the meantime, employee advocates will be pressing meal period class action claims.  The fact that the Brinker case is temporarily off the books clears the way for employee claims.  In addition, employers who are presently in litigation likely will see the plaintiffs' counsel stiffening in their resolve since the advantageous Brinker court of appeal decision cannot be relied upon.

What does this mean to you?  Employer advocates are hoping that the Supreme Court took the Brinker case appeal to approve the pro-employer flexibile guidelines established by the lower court.  Employee advocates have sought to overturn the Brinker ruling because the case made it much harder for employees to sue employers for meal period violations.  Since it will be a considerable period of time before the court renders its ruling, employers must be vigilant in complying with the state's meal and rest period requirements.

For those employers that have not already done so, at a minimum we are recommending that employers do the following:

· Create and disseminate a lawful meal and rest period policy.

· Train managers on the meaning of the policy and the circumstances under which the state mandated meal and rest period penalty compensation must be paid.

· Ensure that start and stop times for all meal periods are recorded.

· Develop a program to systematically review compliance with the policy.

· Consider having employees sign a written acknowledgement that they understand the requirements of the company policy and post the policy near employee time clocks and where other such postings are made.

· Consider obtaining written meal period waiver agreements where such agreements are permitted.

· If you are using a so-called "on duty meal period" agreement, be sure to have the agreement reviewed by counsel to insure compliance with the state's strict guidelines.

Unfortunately, it will be quite some time before we get clarity in this complex area of wage hour compliance.  In the interim, employers will have to decide how to comply with the law or should the company adhere to a conservative view of the meal period requirements, as most lawyers advocated before the favorable Brinker ruling?  Should the company adopt a policy along the lines of the more flexible Brinker ruling?

 

These decisions will turn on the company's belief about how the Supreme Court ultimately will rule.   We recommend that you consult with your contact at the Firm in making this important and potentially costly risk management decision.