On April 12, 2012, the California Supreme Court issued its long-awaited decision in Brinker Restaurant v. Superior Court (Hohnbaum). The Court ruled in favor of employers on one key issue: California employers must make breaks available and allow the employees to decide to take breaks on their own, but need not ensure that workers take their authorized breaks. The Court's ruling offers some surprising decisions on other issues that do not bode well for employers, including with respect to rest periods and class certification.
Wage and Hour Class Actions:
The Court confirmed its long-held position that class actions are an appropriate vehicle for wage and hour litigation in California. At the class certification stage, "trial courts are not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiff's claims, unless a particular determination is necessarily dispositive of the certification question."
The Supreme Court reached a split result on the contested certification of three classes, giving deference to the trial court determination and arguably giving the plaintiffs' bar guidance how to tailor their showings. "In light of the substantial evidence submitted by plaintiffs of defendants' uniform policy, we conclude the trial court properly certified a rest break subclass. On the question of meal break subclass certification, we remand to the trial court for reconsideration. With respect to the third contested subclass, covering allegations that employees were required to work 'off-the-clock,' no evidence of common policies or means of proof was supplied, and the trial court therefore erred in certifying a subclass." The Court's approval of the rest break class was unequivocal. "The theory of liability—that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment."
The most surprising part of the decision arises in the area of rest breaks. Rest breaks, which took something of a back seat in the dispute, are now front and center.
Brinker held that under the IWC's orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length. Rest periods need not be timed to fall specifically before or after any meal period. The Court held that Brinker's uniform rest period policy, which failed to provide for a second rest period for shifts that were more than six hours, but less than eight created a common question of fact for certification because it failed to account for the "every fraction thereof" language in the wage order. In other words, the Court found that rest period policies that provide for a ten minute rest period for every four hours worked, without taking into consideration the issue of fractions, could result in class treatment.
As to the timing of rest periods, the Court stated that there is no language in the order or otherwise to suggest that the first rest period must be taken prior to the meal period. The Court reversed the Court of Appeal's ruling on certification as to rest periods and re-certified the class.
The Court held that employers, while they must provide meal and rest periods in accordance with law, need not ensure that employees actually take those breaks. "[A]n employer's obligation is to relieve its employee 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." "Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time."
Had this decision gone the other way, California would have imposed on employers a duty not only to provide meal periods, but to force employees to take their meal periods and to police their compliance— even if against the employee's will, and regardless of the employee's reason for not wanting a meal period.
The Court's ruling on meal periods creates more ambiguity than it solves. On one hand, the ruling is beneficial to employers, stating that employers must only make meal periods available and, once those meal periods are made available, the employer is not responsible to ensure that the employee foregoes any work related activities. The Court also noted that meal periods must be made available as near to the middle of the five hour period as practical and that meal periods may be taken closer to the beginning or end of a five hour period where necessary. However, as the Court specifically acknowledged, there is no precise test for when a meal period may be taken closer to the beginning or end of the shift. Thus, from a practical perspective, employers will continue to be faced with uncertainty as to the scheduling of meal periods. Moreover, language in the order suggesting that an employer must make meal periods available but need not monitor their employees during their meal period strongly suggests that employers are still on the hook for scheduling their employees' meal periods and, to some extent, monitoring employees to ensure that they are taking their meal periods.
The Court remanded the issue of certification on the meal period issue to the trial court instructing the trial court to re-consider the issue further in light of the ruling.
In an unusual move, the justice who authored the unanimous decision also authored a concurrence "to emphasize what our opinion does not say. In returning the case for reconsideration, the opinion of the court does not endorse Brinker's argument, accepted by the Court of Appeal, that the question why a meal period was missed renders meal period claims categorically uncertifiable." That is because the employer's claim that an employee may have waived the break is an affirmative defense, not a part of plaintiffs' case-in-chief, and so should not determine the appropriateness of certification of the plaintiff class.
In light of Brinker, we strongly suggest that employers in California review their employee handbooks and meal and rest period policies to ensure that the policies include language consistent with this decision. Moreover, further training will likely be necessary to ensure that supervisors and managers understand the nuance of the "fraction thereof" language related to rest periods. The Brinker decision will certainly spawn further legal disputes and employers will need to be as diligent, if not more diligent than ever before, regarding their employee's rest periods.