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Brinker Restaurants Case: Welcome Relief for California Businesses

By Lee Burdick, Partner, Higgs, Fletcher & Mack, LLP

California businesses can breathe a little easier these days as a result of the recent Fourth District Court of Appeals decision in Brinker Restaurant Corp. v. San Diego Superior Court, Case No. D049331 (July 22, 2008).  The Brinker decision virtually eliminates employees’ ability to hold employers hostage under the California Labor Code for wages, overtime and penalties where the employer made meal and rest breaks available but the employee(s) chose not to take them.

Every California employer knows that the Labor Code requires employers to provide employees with rest and meal breaks if the employee works more than three-and-one-half hours in a shift (rest break) and more than five hours in a shift (meal break).  These mandatory meal and rest breaks are part of a “remedial worker protection framework” that historically has been “liberally construed” against employers.  While such protections are certainly necessary against unscrupulous employers, employees have found ways over time to use them as leverage against employers who attempt to comply with the law in good faith.  Until recently, employees could decline to take their rest and meal breaks offered by employers and then file a complaint later (perhaps after termination of employment) seeking wages for every break missed, overtime compensation where required, and penalties on behalf of themselves and other “similarly situated employees.”

The Brinker decision makes clear two important points:  First, “mandatory” meal and rest breaks do not require an employer to “ensure” that an employee takes the break, only that the break is offered to the employee and the employer does nothing to discourage the employee from taking it.  Second, it will be virtually impossible for employees to bring such claims in the future in the form of a class action given that the reasons why employees do not to take their breaks are inherently individual inquiries that are not conducive to class action treatment.

With respect to meal and rest periods, the plaintiffs claimed primarily that Brinker willfully violated the law by failing to “ensure” that employees took their meal and rest periods, relying in large part on Labor Code § 226.7(a) which provides that “no employer shall require any employee to work during any meal or rest period . . .”  Plaintiffs inferred that, unless the employer acted to “ensure” that employees took their breaks, the employer was effectively “requiring” the employee to work during the break in violation of California law.1 The appellate court disagreed, finding that – so long as the employer provided the employee with the opportunity to take the break and did not “impede, discourage or dissuade” the employee from taking the break – the employer had complied with the law.

The appeals court also concluded that where the employer has a policy allowing employee rest and meal breaks, whether a particular meal or rest break is “prohibited” by the employer or waived by the employee is “by its nature an individual inquiry” - which is not conducive to a class action.  Obviously, every California employer would do well to have a written policy in place allowing for employee meal and rest breaks.

Despite this important win, the business community cannot rest on its laurels.  The Brinker decision was based in large part on several federal district court cases that interpret and apply California law as those courts believe the California Supreme Court would.  Yet, the issue has not been presented to the California Supreme Court, which could affirm or vacate the Brinker reasoning.  Legislative action incorporating the Brinker findings into the California Labor Code would help clarify the legal landscape for employers and could bind the California Supreme Court going forward.  Such legislative action is even more important in light of the California Senate’s reanimation of hearings on Assembly Bill 1711, which will reverse much of the flexibility employers gained in the Brinker decision. 

For more information, contact Lee Burdick, Partner at Higgs, Fletcher & Mack, LLP, at lburdick@higgslaw.com.

1 Plaintiffs also submitted claims regarding the timing of rest and meal breaks, as well as claims for “off-the-clock” work requirements.  This article does not address those claims.