Legal Alert: CA Supreme Court Finally Decides Brinker: Employers Must Only "Provide" Meal Periods, "Not Ensure" They Are Taken

Date   Apr 12, 2012

Employers need only "provide" meal periods to their employees, not "ensure" they are taken.  A second meal period must be taken within ten hours, not five hours after the end of the first meal period.  A policy that only permits and authorizes one rest break for an employee working a seven-hour shift is illegal.



Executive Summary:  Employers need only "provide" meal periods to their employees, not "ensure" they are taken.  A second meal period must be taken within ten hours, not five hours after the end of the first meal period.  A policy that only permits and authorizes one rest break for an employee working a seven-hour shift is illegal.

Today, after more than three and a half years of uncertainty regarding how employers must afford meal periods to their employees, the California Supreme Court issued its decision in Brinker v. Superior Court.  The long-awaited ruling determines many different "wage and hour" requirements under California law, including the standard for providing and scheduling meal and rest periods during employees' shifts.  The Court also issued some particular holdings on the criteria of how a trial court must rule on class certification.

Rest Periods Must Be Permitted After 3.5 Hours

While a 10 minute rest period must be authorized per four hours "or major fraction thereof," such a rest period need not be authorized when the total work time is less than 3.5 hours.  There had been much debate about what a "major fraction thereof" meant, but the Court definitively held that employees are entitled to 10 minutes "rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."

Rest Periods May Be Taken Before or After Meal Periods

The subject of when during a shift an employee must be provided a rest period was also at issue.  The employee argued that "employers have a legal duty to permit their employees a rest period before any meal period."  However, the Court rejected this argument, holding that employers are subject to make a "good faith effort to authorize and permit rest breaks in the middle of each work period," but permitted deviation from this preferred rule "where practical considerations render it infeasible."  Simply, a rest period may fall before or after the meal period.

Rest Period Claims May Be Certified Where a Uniform Policy is Unlawful

The Court set forth the example of where an employer's uniform policy is to authorize and permit only one rest break for employees working a seven-hour shift, this practice violates California law because two rest periods would be required.  It is of no importance that an employee could have waived the second rest period because the second rest period was never authorized.  Perhaps most importantly, because this is a uniform policy, and this policy violates the law, a rest period claim may be certified as a class action because it is a "common question." 

Employers Must Provide Meal Periods, Not Ensure Meal Periods Are Taken

The California Labor Code requires that an employee may not be employed for a work period of more than five hours without a meal period of less than thirty minutes.  The employee argued that this meant an employer is obligated to "ensure that work stops for the required thirty minutes," while the employer argued that it is only obligated to make meal periods available, "with no responsibility for whether they are taken."  The Court agreed with the employer: "an employer's obligation is to relieve its employees of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done."  This requirement is abundantly more employer-friendly.

However, employers must still be cautious in reading this "provide" standard too broadly.  The Court set forth different scenarios where the employer may believe it is providing a meal period, when really it is not.  Importantly, California law does "not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks."  For example, a violation could exist where a scheduling policy makes taking breaks extremely difficult.  Indeed, "an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks."

The Court summarized as follows: "The employer satisfies [its meal period] obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so."

When Exactly is the Fifth Hour?

Employers must provide meal periods by no later than the fifth hour of work.  However, questions are often asked along the lines of:   "What if the meal period is provided at the 5:59 mark of the shift?"  With questions like these, it is very important to understand what is meant by "fifth hour."  The Court explicitly held: "the statute requires a first meal period no later than the start of an employee's sixth hour of work."  In other terms meaning the same thing, the statute "requires a first meal period no later than the end of an employee's fifth hour of work."  Additionally, the Court held in summary: "first meal periods must start after no more than five hours." 

In terms of a timer, the 5:59 mark is actually the end of the sixth hour, and the near start of the seventh hour.  Accordingly, providing a meal period at the 5:59 point misses the mark by an hour.  An employer must actually provide a meal period no later than the 5:00:00 mark (the very end of the fifth hour, assuming that 0:00:00 is not counted somehow).  Of course, it would be a much more prudent practice for the employer to provide the meal period before this time, instead of the last minute (or second if your timekeeping system has that function).

Second Meal Periods Must Be Provided During the First 10 Hours Worked

California law requires that an employer must also provide a second meal period to an employee where more than ten hours in a day are worked.  The employee argued for an additional timing requirement beyond simply providing the meal period within the ten hours, asserting that an employer must provide a second meal period no more than five hours after the end of a first meal period.  The Court rejected this notion, holding that the language of the controlling law is clear: a second meal period is only required after no more than ten hours of work.  Many plaintiffs' counsel believed the Court would rule the other way on this in light of the questioning at oral argument, but rest assured that there is no "rolling five-hour" requirement as you may have heard rumored before.

The Burden is On the Employee to Show Work Was Performed Off-the-Clock

In order to certify a proposed class, an employee must establish a common policy or method of common proof of his claims.  For claims of working "off-the-clock," the employee failed to show "substantial evidence of a systematic company policy to pressure or require employees to work off the clock."  This is an especially difficult hurdle for a plaintiff as the burden is on the employee to show work was done when clocked out.  Indeed, the employee must show that the employer "knew or should have known off-the-clock work was occurring."  Off-the-clock claims are rarely certified, and the Court's ruling confirming this standard should only continue employers prevailing on these claims.

Employers' Meal Period Records

In a separate opinion written only for the purposes of stating what the majority opinion does not say, the author of the Brinker opinion dismissed the employer's argument that the question of why a meal period was missed automatically renders meal period claims "uncertifiable."  The separate opinion noted: "If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided."  Further, where an employer asserts that employees are relieved of duty, but waived their rights to a duty-free break, this is for the employer to prove – not the employee.  In the context of class certification, employers argue that this defense must be raised for each individual employee, and, thus, certification should be denied.  The Court stated that this is not automatically the case, as the question truly "hinges on the manageability of individual issues."

Class Certification Requirements

Often, issues affecting the merits of a case may be enmeshed with the requirements to certify a class, and, as a result, trial courts frequently determine the merits, to an extent, in ruling on certification.  The Court clarified the requirements for class certification in California: "Presented with a class certification motion, a trial court must examine the plaintiff's theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate."  Further, where "certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them."

Employers' Bottom Line

While this opinion confirms the "provide" standard under which employers have been operating for some time, the Brinker decision still leaves the door open on meal and rest period class actions under certain sets of facts.  Please note that this case was determined in the context of Wage Order Number 5, which primarily applies to employers in the hospitality industry.  The decision may be applicable to employers in other industries if they are subject to similarly worded Wage Orders.  If you have any questions regarding this case or other labor or employment related issues, please contact the author of this alert, Kevin Sullivan,, or the Ford & Harrison attorney with whom you usually work.