California Employers Finally Get Some Meal & Rest Break Relief

I don’t get to blog very often on positive developments in the world of wage and hour. It seems like it’s always down, down, down with no bottom in sight. But today, I’m actually passing on a bit of good news, at least for California employers.

The Fourth District Court of Appeals in San Diego issued its ruling in Brinker Restaurant Corporation v. Superior Court, No. D049331 (July 22, 2008), and put to rest (pun intended) a vexing meal and rest break issue.

For years, California employers have been struggling to figure out exactly what they need to do to comply with state meal and rest period obligations. We’ve all wondered, “Are we actually required to force employees out the door to ensure that they take their scheduled breaks?”  This interpretation has seemed a bit extreme and heavy-handed, but it’s certainly one way to make sure that employees actually take their breaks. And the California Division of Labor Standards Enforcement has fully supported this very conservative approach.

Provide vs. Ensure—One Word Makes a World of Difference

So what exactly has the Brinker decision resolved? For a great overview of all the details, Littler Mendelson has put together a nice summary on the decision and the key holdings: A Ray of Hope: California Court of Appeals Decides Compliance with Meal Period Obligations Requires an Opportunity, Not A Guarantee. It’s worth a read so you can get a full picture of the decision.

From my perspective, the most important take-aways are that:

• Employers only need to provide employees with an opportunity to take meal periods (this same rule applies to rest periods), not to ensure that employees actually take them.

• Employers cannot impede, discourage or dissuade workers from taking their breaks.

• If an employee chooses not to take the break under the above circumstances, there is no violation.

If Brinker is upheld, California employers can let employees be responsible adults who are mature enough to take their own breaks.

But The Issue Isn’t Completely Put to Rest … Yet

Alright, so now I’ll burst the bubble – just a little bit.

Brinker will almost certainly be appealed, and the CA Supreme Court will likely accept it for review. Who knows what will ultimately happen- but for the time being, the CA Division of Labor Standards Enforcement has directed its staff to follow the Brinker holding (DLSA Memo to Staff regarding Brinker decision), which they will also apply to pending cases.

What Should Employers Do Now?

While we’re in this holding pattern, it’d be good to consult with an attorney, check out your current practices, make sure things are in order, and that you’re managers are not discouraging employees from taking their breaks.

And I’d also seriously consider training your employees and managers on expectations regarding meal and rest periods, as well as off-the-clock work (another key part of the Brinker decision). If lawyers and experts have been debating this stuff and struggling with the language for years, just imagine how hard it is for your managers to sort out the practical implications in the workplace.  A little education and communication will go a long way.

The Ongoing Wage and Hour War

Getting meal and rest break compliance wrong has meant big dollars for California employers. Multi-million dollar verdicts have been commonplace, with average state settlements currently weighing in at $24.4 million – a mind boggling number.  Needless to say, these types of cases continue to be extremely attractive and very lucrative for plaintiffs’ attorneys. Just this month, a class of more than 5,000 employees was certified in a high profile meal and rest break case against Polo Ralph Lauren – see Otsuka v. Polo Ralph Lauren Corp., ___ F.Supp.2d ___ (N.D.Cal. July 8, 2008) [Slip Opn., at 1-2].   

The litigation won’t disappear, but hopefully clearer guidelines will help proactive employers stay out of harm’s way.

And just when you thought the pressure was potentially easing off state wage and hour issues, it looks like House Democrats will be pushing for stricter enforcement of federal wage and hour laws.  A scathing GAO report of DOL enforcement efforts has the employment law community buzzing about even greater wage and hour exposure in 2009– especially with major political change just around the corner.

The wage and hour war isn’t ending any time soon – it’s just evolving with each series of painful battles.