ALERT: California Appellate Court Holds that Meal Periods Must be Made Available to Employees; California Labor Commissioner Follows Suit

On July 22, 2008, the California Court of Appeal in San Diego issued a decision in favor of employers on a broad range of issues concerning the employer's obligation to "provide" meal and rest periods to its nonexempt employees, and what that obligation requires of the employer. Apart from favorable rulings on these questions of substantive law, the Court of Appeal strongly suggested that, in all but rare cases, meal and rest period claims are not appropriate for classwide adjudication. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 2008 WL 2806613 (2008).

Three days later, on July 25, the California Division of Labor Standards Enforcement (the "Labor Commissioner") announced it would follow the Court of Appeal ruling in Brinker in adjudicating individual wage claims and in the Labor Commissioner's other enforcement activities. The Court of Appeal reached the following conclusions:

Meal Periods
The most notable feature of the Court of Appeal's decision is its discussion of what it means to "provide" a meal period. The Court held that an employer's obligation to "provide" employees with a meal period means that it must make meal periods "available." The employer need not "ensure" the meal periods are taken.

The Court found that meal period claims based on a failure to "provide" must be decided on a "case-by-case basis" and, therefore, typically are not amenable to class action treatment. Specifically, the Court stated that "[i]t would need to be determined as to each employee whether a missed or shortened meal period was the result of an employee's personal choice, a manager's coercion, or, as plaintiffs argue, because the restaurants were so inadequately staffed…." The Court went on to state that "while time cards might show when meal breaks were taken and when they were not, they cannot show why."

The Court found that the trial court erred in concluding that questions concerning the legal elements of a break period claim may form a "common" issue for purposes of evaluating class certification.

The Court rejected the "rolling" meal period theory (whereby any five-hour period in a work period without a meal period is a violation) and found that an employer need not provide meal periods in the middle of a shift.

The Court found that waivers of meal periods made pursuant to Labor Code section 512(a) need not be in writing.

Rest Periods
As with meal periods, the Court found that an employer's obligation to "provide" rest periods is to make them available, not to ensure that they are taken. Further, the question of whether a rest period was "provided" is an individualized inquiry that is not amenable to class treatment.

The Court found that an employee is entitled to authorization for one rest period for the first three and one-half to four hours of work, and is entitled to authorization for a second rest period if he or she works eight hours. The Court rejected the claim that an employee is entitled to one rest period for each three and one-half hours worked.

Concerning the timing of rest periods, the Court found that an employer need only provide a rest period in the middle of each work period to the extent it is "practicable." An employer need not necessarily provide a rest period before it provides a meal period. The Court stated that the applicable regulations are "intended to provide employers with some discretion to not have rest periods in the middle of a work period if, because of the nature of the work or the circumstances of a particular employee, it is not practicable."

The Court found that an analysis of the "practicability" of timing of a particular break authorization in the middle of a shift is a fact-intensive and individualized inquiry. Therefore, that issue also is not amenable to classwide adjudication.

Based on these conclusions, the Court of Appeal vacated the trial court's class certification order and directed the trial court to enter an order denying class certification with prejudice. Though the Brinker decision may be reviewed by the California Supreme Court, we note that many of its holdings are consistent with several recent federal decisions interpreting these same laws, and cited by the Brinker Court.

What Should an Employer Do?

The Brinker decision is favorable to employers, but improper meal and rest period practices still may result in substantial liability. An employer must pay a nonexempt employee an hour's pay for failure to provide the employee with a meal or rest period in accordance with the Labor Code and Industrial Welfare Commission orders. To ensure compliance, employers should consider the following best practices:

  • Make sure that the appropriate Industrial Welfare Commission Wage Order is posted in employee lunch rooms or other areas where notices are typically posted.
  • Include meal and rest period procedures in new hire orientation.
  • Include meal and rest period policies in employee handbooks and obtain employee signatures on acknowledgement of receipt of the handbook.
  • Train supervisors on meal and rest period rules and procedures.
  • Make sure that time records for nonexempt employees reflect meal periods, including the beginning and ending time for each meal period.
  • Periodically review time records of nonexempt employees to determine whether employees are reporting meal periods.
  • If a nonexempt employee does not report meal periods, inquire of the employee(s) whether the meal period was actually taken but not recorded.
  • If a nonexempt employee reports he or she did not take a meal period on a particular day, inquire about the reasons.
  • Discipline or counsel any supervisors who dissuade or instruct employees to miss meal or rest periods.

For further information, please feel free to call your Jones Day contact or:

Mark D. Kemple
555 South Flower Street, Fiftieth Floor
Los Angeles, CA 90071
Telephone: (213) 489-3939
Facsimile: (213) 243-2539

Aaron Agenbroad
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: (415) 626-3939
Facsimile: (415) 875-5700

George S. Howard, Jr. 
12265 El Camino Real, Suite 200
San Diego, CA 92130614
Telephone: (858) 314-1200
Facsimile: (858) 314-1150

Robert A. Naeve 
3 Park Plaza, Suite 1100
Irvine, CA 92614
Telephone: (949) 851-3939
Facsimile: (949) 553-7539

This alert is intended to provide a brief synopsis of recent developments in the law and should not be construed as legal advice. For more information, please contact your Jones Day contact, Jacqueline Holmes or Sarah McClure, at 1.202.879.3939.