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On October 22, 2008, the California Supreme Court voted 6-0 to review the Brinker decision discussed below.  In its announcement, the Court states that “(t)his case presents issues concerning the proper interpretation of California’s statutes and regulations governing an employer’s duty to provide meal and rest breaks to hourly workers.”

As a result of the Supreme Court’s actions, the Court of Appeal decision is “depublished” and should not be cited.  After further briefing and argument, the Supreme Court will issue a new opinion that will supersede both the trial court and Court of Appeal decisions.


A California Court of Appeal has provided major relief to employers from the “Catch-22” problem that employees are entitled by law to daily time off for lunch and rest breaks, on pain of penalties and overtime pay claims, but there are no humane means to force literally every employee to timely take every minute of every allotted break daily and document such compliance.  As a result many employers have been subjected to claims, including class actions, years after the fact for lost minutes of meal times and rest breaks, which when multiplied by day after day accumulation, plus overtime and penalties, can grow to enormous value, even when employer policies are crystal clear that managers must allow all such breaks and employees must use them.

The Court of Appeal, after direction from the California Supreme Court to reconsider an earlier opinion, has produced a thorough and welcome clarification to break time obligations, concluding specifically as follows.  “(1) While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.”  Further, in light of these clarifications, the court found that employee claims for meal and break time deprivation and resulting overtime are inherently fact-specific as to individual employees.  Thus they are not suitable for class action determination, and class certification in the present case must be denied.  Brinker Restaurant Corp. v. Superior Court, California Court of Appeals No. D049331, July 22, 2008.

It is difficult to overstate the relief this decision provides to sometimes extortionate and almost indefensible claims, especially seeking class action, for meal and rest breaks which were allegedly missed, or shortened, in the course of day-to-day work.  For example, employees working in the field, or telecommuting at home, or in their cars or otherwise in transit, cannot be forcibly tracked by the employer to monitor every minute of working activity throughout a daily shift, at least not without deep intrusions on employee privacy and autonomy.  Moreover, it is common for workers to choose on occasion to defer or truncate a rest period and get the job done sooner based on their own personal preferences and daily exigencies, such as wanting to get home.  In finding that employers must “provide” (make available) meal and rest breaks, but not “ensure” that they are taken, the court references approvingly the federal district court analysis in White v. Starbucks Corp. (N.D. Cal. 2007, 497 F. Supp.2d 1080), also adopted in Kenny v. Supercuts, Inc., N.D. Cal., 2008 WL 2265194).

For employees covered by collective bargaining (union) agreements, while the Brinker case does not modify express contractual terms which may currently be in place, it is still instructive since California meal and break time requirements operate as the floor under what union contracts can provide.  Also, while it is expected that plaintiff groups may request California Supreme Court review of the Brinker decision, we are optimistic that the essential reasoning and statutory interpretations in the Brinker opinion should be confirmed in that event.

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