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Major Victory for CA Employers: Meal & Rest Periods Need Only Be Provided, Not Ensured

By: Veronica M. Gray

On July 22, 2008, the California Court of Appeal handed a major victory to employers in its decision in Brinker Restaurant Corporation, et al. v. Hohnbaum et al., unanimously ruling that employers are only required to provide and need not ensure that meal and rest periods are taken by employees. This is the first California published appellate court decision holding that employers only have to provide, and not ensure, that meal and rest periods are taken. Not only did the Governor of California applaud the Brinker decision, but on July 25 2008, the Labor Commissioner of the Division of Labor Standards Enforcement ("DLSE") issued a memorandum stating that effective immediately DLSE would apply the Brinker decision to any wage claim with a meal/rest period issue, including any pending matters. The court's further holding that the determination of whether employees were provided timely meal and rest periods requires an individualized inquiry into the circumstances surrounding each alleged missed or late meal and rest period will make it more difficult for plaintiffs to certify meal and rest period cases as class actions.

Background Facts

In Brinker, plaintiffs sued defendant Brinker Restaurant Corp. ("Brinker") for failure to provide meal and rest periods, or compensation in lieu of such unprovided meal and rest periods, and also claimed that Brinker required them to perform "work off the clock" during meal periods. Seeking to have their case litigated as a class action, plaintiffs moved to certify a class of "all hourly employees of restaurants owned by [Brinker] in California who have not been provided with meal and rest breaks in accordance with California law and who have not been compensated for those missed meal and rest breaks."

The trial court granted class certification without first resolving the threshold issue of what duties Brinker had with regard to providing meal and rest periods to comply with the Labor Code. On review, the question before the Fourth Appellate District was whether the trial court erred in certifying the matter as a class action without first defining the proper legal standard applicable to plaintiff's meal and rest period claims against Brinker. On October 12, 2007, the Court of Appeal issued an initial decision reversing class certification and remanding the matter to the trial court for determination of whether Brinker had a duty to ensure that its hourly employees actually take meal periods.

On July 22, 2008, after considering the issue further, the California Court of Appeal again reversed the trial court's class certification order on the grounds that individual issues predominated, thereby making the claims not suitable for class treatment and determined the legal standards applicable to plaintiffs meal and rest period claims.

Rest Periods

In interpreting the Industrial Welfare Orders which provide that every employer shall "authorize and permit" its employees to take rest periods, the Court of Appeal made several important findings:

  • Employers need only provide, not ensure, that rest periods are taken by its employees.
  • Employers cannot impede, discourage or dissuade employees from taking rest periods.
  • Employers need only authorize and permit rest periods every four hours or major fraction thereof. These rest periods need not be scheduled in the middle of each work period if impracticable because of the nature of the work or the circumstances of a particular employee.
  • Employers are not required to authorize and permit a first rest period before the first scheduled meal period.

In a statement that will undeniably have significant impact on the certification of employee class actions, the Court opined that "[t]he question of whether employees were forced to forgo rest breaks or voluntarily chose not to take them is a highly individualized inquiry that would result in thousands of mini-trials to determine as to each employee if a particular manager prohibited a full, timely break or if the employee waived it or voluntarily cut it short."

Meal Periods

In interpreting Labor Code s§ 512 and the Industrial Wage Order requiring employers to "provide" meal periods, the Court made several significant rulings regarding meal periods:

  • While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide, not ensure, they are taken[1]. Employers are not required to provide a meal period for every five consecutive hours worked; rather a second meal period is due only after 10 hours of total work, if there is no waiver. Accordingly, there is no impermissibility with respect to "early lunching," so employees may take their meal periods immediately after arriving at work and then work in excess of five hours without taking a second meal period.

Off-The Clock Claims

The Court also held that 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. It concluded that the trial court erred in certifying these claim – as the others - as a class action because they were not amenable to class treatment as individual issues predominated on whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.

Best Practices

Although the Brinker decision is a significant victory for employers it is probably not the last word on the issue. It will likely be appealed to the California Supreme Court.[2] Additionally, there is pending legislation regarding this issue.[3]

Until this issue is finally resolved either by the California Supreme Court or by the legislature, employers should:

  • Have a clear policy providing for meal and rest breaks;
  • Educate your employees about the policy;
  • Enforce the policy;
  • Encourage, and do not impede, discourage, or dissuade, your employees to take meal and rest breaks;
  • Have employees record and acknowledge that they have taken their meal and rest breaks;
  • Make sure that the meal breaks are taken before the start of the fifth hour of work;
  • Make sure that the employees take a full thirty (30) minutes;
  • If an employee has to work during the meal period, have them sign a waiver acknowledging that the nature of the employee's work prevented him or her from being relieved of all duty and pay them for the time worked; and
  • Have a policy that all employees are to record all time worked and subject to termination if they fail to comply.

Veronica M. Gray is Chair of Nossaman's Employment Practice Group and represents employers in all areas of employment law. She can be reached at (949) 477-7663 or

[1] The Court favorably cited two recent federal district court cases in California, White v. Starbucks Corp. and Brown v. Federal Express Corp, which held that employers need only offer and not ensure that meal periods are taken by employees. The Court distinguished Cicairos v. Summit Logistics, Inc., in which the court upheld class certification of truck drivers claiming they were denied meal periods, on the basis that the management policies, such as, scheduling trips in a manner that it was hard for drivers to make time for off-duty meal periods, effectively deprived the drivers of their meal periods.

[2] Plaintiffs' counsel referred to the Brinker "ruling" as "a horrible decision for employees."

[3] Both SB 1192 and AB 1034 propose to amend Labor Code §512 to clarify that employers only need to provide, not ensure, that meal periods are taken and when the meal period must commence. SB 1192 also seeks to overturn a recent California Supreme Court case holding that payments for meal and rest breaks are wages and not penalties.

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