California Supreme Court Review of Brinker

Monday, 27 October 2008 12:32

Wage & Hour

• While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken.
• 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.
• Employers are not required to provide a meal period for every five consecutive hours worked.
• Employers cannot impede, discourage or dissuade employees from taking meal periods. They need only provide them and not ensure they are taken.
• 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.

The Court also found that since rest and meal breaks need only be "made available" and not "ensured," the issue was improper for class treatment. The Court also found the employee’s off-the-clock claims were not amenable to class treatment because whether employees were forced to work off the clock, whether the employer changed time records, and whether the employer knew or should have known employees were working off the clock were all individual issues.

The Supreme Court’s decision to review Brinker is not surprising. First, Brinker was a significant departure from the Labor Commissioner’s view that management has an affirmative obligation to ensure employees actually take their meal breaks. Second, the Supreme Court recently declined to review Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App. 4th 11, a wage and hour case with similar facts, but a totally different result. In Bufil, the Appellate Court held the “onus is on the employer” to provide employees with the opportunity to take the required breaks and that it was more expedient to determine rest and meal breaks as a class action.

COUNSEL TO MANAGEMENT:

Management must not rely on Brinker when considering their wage and hour policies. Brinker is now being reviewed, which means the opinion must not be cited or relied on by a court or a party in any other action. It is as if the opinion never happened.

While Brinker is being reviewed, cases like Bufil, which impose an affirmative duty on Management to ensure meal and rest breaks and allow for class action treatment, are the law. Therefore, Management should take this time to review their current wage and hour policies. If Brinker is affirmed, then Management will have a jump on adopting new policies to reflect the new law. If Brinker is reversed, then Management will have the time to fine tune their current policies.

For now, Management should continue to monitor our website for important updates concerning Brinker. Management should continue to ensure their employees have adequate rest and meal periods in accordance with applicable wage orders and, as always, Management should maintain accurate time records.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.