The California Supreme Court granted review of Brinker Restaurant Corp. v. Superior Court of San Diego County on October 22, 2008. Brinker had stated, among other things, that employers need only make meal and rest breaks "available" to employees; they need not ensure that employees actually take these breaks. However, employers cannot rely on this guidance as the California Supreme Court has decided to review the decision and, thus, will have the last word on the issue.
Brinker, the Labor Commissioner, and Brinkley
As reported in the July 2008 Employment Alert, the Brinker appellate court decision clarified employers' statutory meal and rest break requirements in holding that while employers cannot impede, discourage or dissuade employees from taking meal and/or rest breaks, they need only provide, not ensure, that breaks are taken. In so holding, Brinker rejected an interpretation of case law often cited by employees for the proposition that employers have an affirmative obligation to ensure employees actually utilize meal and rest breaks. As to the timing of break periods, Brinker stated that rest breaks need not, where impractical, be in the middle of each work period, and similarly, meal breaks are not required for every five consecutive hours worked; rather, they must be provided for each shift worked in excess of five hours. While the Brinker decision provided substantial clarity in the murky waters of employers' meal and rest break obligations, now that the California Supreme Court is considering the issue, employers can no longer rely on this guidance.
Recognizing that Brinker is no longer good law while on appeal, the Labor Commission issued a memorandum to the Division of Labor Standards Enforcement staff on October 23, 2008, providing guidance on employers' meal and rest break obligations based on principles drawn from applicable statutes and pre-Brinker case law. While the memorandum does state that there is "compelling support" for the position that employers must only provide meal breaks to employees and "do not have an additional obligation to ensure" such meal breaks are actually taken, it does not provide a final answer as this is the primary issue before the California Supreme Court.
On October 28, 2008, less than one week after the California Supreme Court granted review of the Brinker decision and the Labor Commissioner issued the aforementioned memorandum, the California Court of Appeal for the Second Appellate District, Division Three, issued its ruling in Brinkley v. Public Storage (B200513). Brinkley and Brinker are not just similar in name; the central issue in both cases is employers' meal and rest break obligations. Like Brinker, Brinkley held that employers must only make meal and rest breaks available to employees and are not required to ensure that employees actually take such breaks. Brinkley also specifically held that California law does not require employers provide meal breaks within the first five hours of an employee's shift. This interpretation directly conflicts with the Labor Commissioner's memorandum inasmuch as the memorandum states that the "first meal period ... must commence prior to the end of the fifth hour of work. ..." Thus, there is a discrepancy between the Labor Commissioner and Brinkley on the timing of meal breaks. Until the California Supreme Court rules in Brinker, employers' meal and rest break requirements remain unsettled.
The remaining issue decided in Brinkley involved Labor Code section 226, which relates to the accuracy of certain information contained on employee pay stubs. The Court stated that an employer cannot be liable for misstatements on pay stubs unless it knowingly and intentionally makes such misstatements and an employee suffers injury as a result.
Practical Effect
The Brinker and Brinkley decisions are similar in name and substance but drastically different in effect: Brinker is not good law as it is on appeal, while Brinkley is a published decision and, therefore, good law (for now). Insofar as the Brinkley decision has the force of law, employers technically can rely on its interpretation of California's meal and rest break requirements and the Court's interpretation of Labor Code section 226. Nevertheless, given the California Supreme Court's decision to review Brinker – a decision that considers the same central issue as Brinkley – the Brinkley decision may be appealed or depublished while Brinker is on review. Therefore, California employers must continue to monitor employees who forgo legally mandated breaks. Employers should have written meal and rest break policies, acknowledged by employees in writing, which advise employees that they are permitted to and should take legally required breaks. To that end, employers should: ensure that non-exempt employees' schedules and work duties do not inherently prevent or discourage breaks; require that these employees record breaks on their time cards; and request that these employees confirm that breaks were actually taken or, if not taken, that they so advised management in order to ensure that breaks are taken in the future.
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