You Can Lead A Horse To Water, But Do You Have To Make Him Drink?
Is it enough for employers to make meal and rest breaks available to employees, or do employers have to ensure those breaks are taken? That’s the central issue now being weighed by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court after oral arguments were heard in November 2011.
Generally, California requires that hourly employees be given a paid, 10-minute break for every four hours worked. If fewer than 3.5 hours are worked in a day, no rest break is required. California law also requires that employees who work more than five hours in a day be provided with an uninterrupted meal break of at least thirty minutes.
In the Brinker case, the plaintiffs filed a class action lawsuit against Brinker Restaurant, Brinker International and Brinker International Payroll alleging various labor-law violations. Among other things, the plaintiffs allege that Brinker failed to provide its employees with meal and rest breaks.
Brinker operates more than 130 restaurants in California, including well-known eateries such as Chili’s and Macaroni Grill. The plaintiffs were a group of hourly employees at Brinker’s restaurants. Taken together, the number of plaintiffs would include more than 59,000 current and former employees.
Brinker had a written policy signed by each employee that set forth statutory meal and rest periods, stating the employee may be disciplined or terminated for failing to take those breaks. Brinker also required employees to clock out for meals so that the company could maintain accurate payroll records.
The central thrust of the plaintiffs’ claims is that the employer:
1) Failed to provide meal and rest breaks;
2) Required employees to take “early lunches” and then required that they work upwards of nine hours without any additional meal period; and
3) Required employees to work “off the clock.” The plaintiffs essentially argue that it is not enough that employers make rest and meal breaks available. Instead, the plaintiffs claim employers must “ensure” that the employee takes meal periods.
The trial court certified the case as a class action, despite defense attorneys’ arguments that Brinker had a policy expressly prohibiting “off the clock” work and defendants could not be liable for such conduct unless it “suffered or permitted the work.” Brinker appealed and in 2008, the court of appeals ruled the other way, finding that employers need only provide, not ensure, that rest breaks are taken.
The plaintiffs then sought review by the California Supreme Court. In early November 2011, after a three-year delay, the California Supreme Court heard oral arguments.
While by no means predictive, the Supreme Court’s questions during oral argument suggest they may be favoring the employer’s position. The newest addition to the bench, Justice Goodwin Liu, emerged as one of the high court’s most active questioners. He was dismissive of the idea that employers are obligated to ensure that workers take their breaks.
While it is often difficult to discern how the Court will rule based on the questions that justices pose during oral argument, it appears that a majority of the Court—perhaps even all of the justices—may hold that employers need not ensure their employees take their meal breaks. It was less clear, however, how the justices might rule on some of the other wage and hour issues raised. For example, the justices appeared divided over the question of whether employers must, pursuant to wage order regulations, provide a second meal break in a single work day if five hours have passed since the last meal break.
A record number of wage and hour suits have been initiated in recent years and many of those are brought as class actions. If the Supreme Court holds as anticipated, California employers may receive some relief from the recent wave of similar lawsuits.
