California Employers Get a Break on Meal and Rest Claims But Still Face Class Action Filings

The court in Brinker, in a unanimous opinion, held that California employers are required to relieve their nonexempt employees of all duty and give them an opportunity to take a meal break every five hours, but they are not required to "police" their employees' breaks or to ensure that no work is performed. The court did not delineate what will constitute sufficient "relief of all duty," commenting that it will vary from industry to industry. Nonetheless, it did hold that employers are not liable for premium pay if their nonexempt employees choose to work through their breaks.

The Brinker Court also addressed the timing of 30-minute meal breaks. It held that nonexempt employees are only entitled to a first meal period prior to the end of their fifth hour of work and a second meal period before the end of their tenth hour of work. It denied liability for an alleged "early-lunching" policy, i.e., a single meal period soon after beginning a shift followed by six or more hours worked without an additional meal period. In so doing it declined to adopt a "rolling five" rule which would have required employers to provide an additional meal break any time a nonexempt employee had worked five hours since the last meal break.

The court also provided important guidance on the timing of rest breaks. Most California wage orders require a 10-minute rest break for nonexempt employees for every four hours worked, or "major fraction thereof." Brinker acknowledged that the wage orders specify that no rest break is required if the employee works less than three and one-half hours and further held that the phrase "major fraction thereof" means more than 50% of the four-hour period. Accordingly, following Brinker, employees are entitled to one 10-minute rest break for shifts from three and one-half up to six hours in length, two 10-minute rest breaks for shifts of more than six hours but less than 10 hours, and so on. Although this interpretation is contrary to that of the defendant in Brinker and will come as a surprise to many employers, it does lay down a bright line rule that all employers will be in a position to implement going forward.

The Brinker Court further held that employers do not have a duty to permit their employees a rest period before any meal period. Rest periods must fall in the middle of work periods "insofar as practicable," but employers are not required to provide them at a particular time.

Finally, the court affirmed the Court of Appeal's decertification of a subclass alleging that the Brinker Corporation required employees to work off-the-clock during meal periods and altered employee time records to misreport the amount of time worked and break time taken. The court held that neither a common policy nor a common method of proof was apparent. Anecdotal evidence of a handful of individual instances in which employees worked off-the-clock, with or without their supervisor's knowledge, was insufficient to support a class-wide claim.

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