Jim Denison
California employers’ policies regarding when workers take meal and rest breaks have been the subject of much litigation affecting many industries, including the construction industry. Regardless of whether an employer took measures to make meal and rest breaks available to employees, plaintiffs’ lawyers argued that the employer did not go far enough – that the employer had to ensure that employees took the meal and rest breaks they were offered.
Building on the premise that meal and rest breaks failed to be taken as required, plaintiffs (employees) alleged that the employer therefore failed to properly calculate wages, that additional wages and overtime were owed and, if the employer was sufficiently large, that the case should proceed as a class action.
In October 2008, the California Supreme Court agreed to review the case Brinker Restaurant Corporation v. the Superior Court, to resolve whether employers need only make meal and rest breaks “available” to employees or, as plaintiffs have urged, “ensure” that the breaks are actually taken. Oral arguments took place November 9, 2011. Based on the comments and questions from the judges at the November hearing, the expectation is that the Court will side with Brinker and rule that “providing” meal and rest breaks, in the statute’s words, means making meal and rest breaks available, not ensuring they are taken. As one justice commented, rigidly requiring meal and rest breaks by the fifth hour of the workday would, for example, require truckers to pull off the road, regardless of whether it is safe to do so. As was also pointed out, the policy of enforcing meal and rest breaks would require workers to let work pile up rather than take a break when it was more convenient, which is not protective of workers’ interests.
Other rulings on employment and class action issues in the case may be more of a mixed bag:
- The Court indicated that requiring employees to complete four full hours of work before taking a rest break would be a violation of the Labor Code that would warrant class certification;
- Pressuring workers to skip breaks could qualify as failing to “provide” breaks, although it was unclear whether the Court was convinced the plaintiffs’ allegations did or did not amount to pressuring employees in this case;
- The Court may adopt the so-called “rolling five” requirement regarding whether an employer may have to make a second meal period available after five hours;
To the extent the Court’s opinion on the issues is considered a clarification of the meaning of the laws, it may apply retroactively to other cases that have been pending. The actual opinion of the Court is expected to be handed down by February 2012.
