Ever since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) in October 2008, California employers have anxiously awaited the California Supreme Court's standards for meal and rest breaks provided to non-exempt employees. The Court has now spoken definitively on the following issues:

Meal Periods – Provide, Not Ensure: The Court concluded that "an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done." The Court added that "the employer is not obligated to police meal breaks and ensure no work thereafter is performed." The Court emphasized the need for flexibility from industry to industry, and noted that, while an employee may not capitalize on premium pay by intentionally working through provided breaks, neither may an employer "impede or discourage" a full, uninterrupted break.

Meal Breaks – "Rolling Five" or One per Ten? The Court concluded that, absent a waiver for employees who work more than five, but less than six hours in a day, the employee is entitled to a first meal period no later than the end of the employee's fifth hour of work, and a second meal period no later than the end of the employee's tenth hour of work. The Court rejected the "rolling five" requirement urged by Plaintiffs, i.e., that, regardless of the timing of the initial meal period, an employer would have to provide a second meal period for each successive work period of five hours.

Rest Breaks - When and How Many? The Court concluded that to "earn the first 10 minutes, one must be scheduled for a work shift of at least three and one-half hours, while to earn the next 10 minutes, one must be scheduled to work four hours plus a major fraction, to earn the next, eight hours plus a major fraction, and so on." Accordingly, an employee scheduled for a work shift of at least three and one-half hours is entitled to one 10-minute rest period. To earn the second rest period, an employee must be scheduled to work more than six hours (four hours plus a "major fraction," i.e., more than two hours), and for a third rest period, more than 10 hours, etc.

The Court also held that "in the context of an eight-hour shift, '[a]s a general matter,' one rest break should fall on either side of the meal break." As such, the Court declined to make a bright-line requirement that the first rest period precede the meal period, noting the need for flexibility given different lengths of shifts and "other factors that render such scheduling impracticable." Subject to these circumstantial considerations, the Court articulated a "general rule" for a typical eight-hour shift that one rest break should fall on either side of the meal break.

Class Action Litigation? The Court faced the following three subclasses and ruled as follows:

Rest Breaks Subclass Issues: The Court opined that the trial court's certification of a Rest Break Subclass was correct, because Plaintiffs had articulated a common question and provided substantial evidence of a uniform policy adopted by Brinker that allegedly violated the law. Specifically, Plaintiffs alleged that Brinker's policy potentially deprived class members of rest breaks because it disregarded the "major fraction" requirement.

Meal Breaks Class Issues: The Court remanded to the trial court for reconsideration. The Court found that, based on its ruling with respect to the timing of meal periods, the class, which was defined, in part, by Plaintiffs' "rolling five" legal theory, was too broad and included individuals with no possible claim. "

Off-the-clock" Class Issues: This class arose from Plaintiffs' allegations that Brinker did not relieve employees of all duty during their off-the-clock meal periods and altered time records to conceal time worked. Here, the Court looked to Brinker's formal policy prohibiting off-the-clock work and found no evidence of a uniform policy to support Plaintiffs' theory. Accordingly, the Court concluded that "neither a common policy nor a common method of proof is apparent" and held that the trial court erred in certifying the class.

Retroactive or Prospective Application? Because the Court did not adopt the "rolling five" requirement, this issue has less resonance. Notably, the Court characterized its opinion as a "clarification" of the law. Accordingly, pending meal and rest break cases cannot disregard the ruling and guidance provided by Brinker.

By way of background, on October 22, 2008, the California Supreme Court granted review of the California Court of Appeal decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum), which clarified that employers must provide meal breaks to non-exempt workers but were not required to police their workforce to ensure that they were taken. Since that time, six California appellate courts issued opinions in line with Brinker's reasoning (and that of several federal courts interpreting the California statutes); however, the California Supreme Court placed each of these on hold pending a decision in Brinker.

In Brinker, employees (restaurant workers) sued for various wage and hours issues, including, missed meal and rest breaks, claiming that their employer's policies of delaying meal periods beyond five hours and requiring employees to take meal breaks at the beginning of their shift violated California law. Brinker claimed that its policies were lawful, that it complied with the requirement to "provide" meal breaks by making meal breaks available to employees, and that it was not required to ensure that meal breaks were actually taken. The trial court granted class certification, and Brinker appealed. The California Court of Appeal's holdings are reflected in the issues addressed by the Supreme Court.

Employers should consult with legal counsel to ensure compliance with their employment practices. Feel free to contact Drinker Biddle & Reath, LLP should you have any questions about the foregoing or any other employment matter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.