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March 2011

California Appeals Court Again Finds that Employers Need Not Ensure Employees Take Meal and Rest Periods

The California Court of Appeal, Second District, recently held in Tien v. Tenet Healthcare Corp. (2011) 2011 Cal.App. Lexis 182 that employers must provide employees with the opportunity to take meal periods, but they need not ensure that employees actually take those breaks.

Plaintiffs are current and former hourly employees of Tenet Healthcare Corp., which owns and operates multiple hospitals throughout California. Plaintiffs filed a lawsuit against Tenet on behalf of themselves and multiple proposed classes of similarly situated hourly employees. Plaintiffs alleged that Tenet violated labor laws by not providing meal and rest breaks.

Initially, the trial court certified most of Plaintiffs' proposed classes. However, during the certification process, the California Court of Appeal, Fourth District, issued its decision in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, which held that an employer must only provide a meal period by making it available and does not have to guarantee that employees actually take their meal periods.

Because this decision would affect the class certification in Tien, the trial court deferred further action to see if the California Supreme Court would grant review of Brinker. After the California Supreme Court did grant review, the trial court decided against further delay of Tien and moved forward with the case. In the meantime, the California Court of Appeal, Second District, issued its decision in Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278. Brinkley's holding was in line with Brinker. Based on the new decisions in Brinker and Brinkley, the trial court denied all of Plaintiffs' proposed class certifications due to overwhelming evidence that Tenet made meal periods available to employees.

Plaintiffs appealed, and the Court of Appeal affirmed. The trial court reasoned that individual questions about the reasons an employee might not take a meal period are more likely to predominate if the employer need only offer but not ensure meal periods. Furthermore, the trial court interpreted Brinker and Brinkley: Under California Labor Code section 226.7, employers must only provide—meaning supply or make available—meal breaks; employers need not ensure employees take those meal breaks.

The Court further justified its decision by pointing out that this reasoning was consistent with other California Labor Code provisions precluding employers from pressuring employees to forego breaks, declining to schedule breaks, or establishing work environments that discourage breaks.

Brinker and four related cases, including Brinkley and Hernandez v. Chipotle Mexican Grill (2010) 2010 Cal.App. LEXIS 1853, are currently pending before the California Supreme Court. The California Supreme Court certified Hernandez for publication on October 28, 2010, but depublished it on January 26, 2011, when it granted its review in conjunction with Brinker. Tien is yet another appellate opinion that gives employers legal support for merely providing rather than ensuring meal periods. However, employers should proceed with caution in relying on Tien because the California Supreme Court will likely grant review. Accordingly, employers will need to await the California Supreme Court's ruling on these cases before a "bright line" rule can be established with respect to the enforcement of meal periods. 

Employment Law

Employment Law