April 2, 2009
The CA Supreme Court is presently reviewing the Brinker Restaurant Corp v. Superior Court (Cal.Rptr.3d, 2008; WL 2806613, Cal.App.4th Dist, July 22, 2008) case, which will provide further guidance on the subject of meal and rest period rules. The underlying case was brought by a class of 59,000 employees from Romano's Macaroni Grill and Maggiano's Little Italy who claimed that their employer, Brinker Restaurant Corp, failed to provide them with proper meal and rest periods. The employees claimed that they were required to take their meal periods within the first hour of work, usually after their pre-shift meeting, and not after the fifth hour that they worked, as specified by numerous Industrial Welfare Commission ("IWC") wage orders and in California Labor Code section 512
On July 22, 2008, a California appellate court issued a decision in Brinker which analyzed what it meant for an employer to "provide" meal and rest periods and it addressed whether or not an employer could provide the meal period in the beginning of the employee's shift, without having to provide a second meal period.
The Court ruled that there is no "rolling" five-hour meal period requirement, and that the employer therefore was not required to "provide" its employees with a meal period for every five hours that they worked. This meant that the Brinker employees could in fact take their meal period after the first hour of work, without having to wait until five hours had elapsed. This ruling was considered a win for employers and yet the ruling has subsequently created confusion in that it contradicts the rules set forth by the IWC and the Labor Code.
The Court also addressed what it means to employers in regards to "providing" a meal or rest period, by ruling that while employers cannot impede or discourage employees from taking meal or rest periods, they need only "provide," not "ensure," that the meal and rest periods are taken. Further, employers need only authorize and permit rest periods every four hour or a major fraction thereof. In so holding, the Court adopted the holding in White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal 2007), agreeing that it would be nearly impossible for employers, especially employers with numerous employees, to physically police each and every employee to ensure that they are in fact taking a meal and/or rest period.
So what should employers do in the meantime? Until the California Supreme Court reaches it final decision, employers should consult with their own legal counsel before making any changes to their current procedures regarding meal and rest periods.
