by Heather Bussing
Last week the California Supreme Court heard arguments in Brinker Restaurant Corp v. Superior Court. This is the lead case in a long line of lawsuits that depend on how Brinker turns out. The issue is whether employers have to make sure employees take rest and meal breaks.
The employees argue that even though the employer’s rules say they must take breaks, there are unwritten rules that prevent or disallow the breaks. The employer claims it requires and encourages employee to take breaks, but can’t be the break police all day.
- Allowing employees to refuse or neglect to take breaks and then sue is an unfair and unlikely result.
- Employers will not be permitted to just rely on their correct policies. Employees must have a real opportunity to take the breaks. But employees will have the burden of proof to show that the employer would not let them.
- Many of the cases exist because of problems with the employer’s time records. Either there are no records, or the records are spotty–which looks like the employees did not take breaks even if they did. The predictable response is to make sure the records are complete and accurate. But the only thing worse than being the break police, is being the break-timecard police. The Court does not seem to be considering this issue, but it’s probably the best argument for deciding that an employer is not required to enforce breaks.
- It’s the lack of uniform and consistent records that is also preventing courts from certifying the lawsuits as class actions. This means that the employer’s inability to prove the breaks were taken in one case is protecting them from having to defend a class of thousands.
Breaking, the Bank
Breaks are a hot issue because big money is at stake.
Meal breaks are usually unpaid and rest periods are usually paid. In an 8 hour work day in California, the employer must provide at least a 30 minute unpaid meal break (after any 5 hours worked) and two10 minute paid rest breaks (one for each 4 hours worked).
Anytime an employer makes an employee remain on site, even if they aren’t working, then the break must be paid. Bono v. Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968.
If they worked a regular day without the breaks, the meal and rest breaks are almost an hour of overtime.
So, we are talking 5 hours per week, at time and a half, multiplied by the number of weeks, times the number of employees. Penalties and attorneys’ fees are on top of the wage claim. That’s not just lunch money.
Most of the cases are really about whether the lawsuit can be decided as a class-action. It’s much simpler (and more profitable) for the employees’ attorneys to bring one case for all employees instead of a separate case for each employee. The courts generally prefer fewer cases, but not if it’s really thousands of individual claims that require mini trials on each employee’s circumstances.
Theoretically, you can have a class action if the claims are basically the same (say, management wouldn’t let employees take breaks) even if you still have to figure out each employee’s damages separates. But if the issue involves employees with different schedules, different managers, and figuring out whether each employee even has a claim in the first place, the courts have consistently denied the class action.
Then the employee can go forward with her own claims, or the attorneys can fight about the class action status, or both. Since there is a lot more money at stake with a class action, the cases, including Brinker, are mostly about denial of the class status instead of the legal issue about rest and meal breaks.
Break it Down
Here is a summary of Brinker and the other cases on hold at the California Supreme Court waiting for Brinker to be decided. Each of these cases was decided by the Court of Appeal and then the Supreme Court granted review. None has reached final decision by the California Supreme Court.
Brinker Restaurant Corporation v. Superior Court. (2008) Brinker Restaurants include Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy–137 restaurants in California alone.
Brinker’s policies said that employees were “entitled” to a 30 minute meal period and they were “eligible” for a 10 minute rest break for every 4 hours worked. Brinker also prohibited working off the clock, and required employees to keep accurate time records.
Employees claimed they weren’t getting to take meal and rest breaks. The Division of Labor Standards Enforcement (DLSE) brought suit against Brinker after an investigation. The evidence showed employees were required to take their meal period at the beginning of their shifts, and then could not take another meal break even though one was due. Brinker also required employees to work off the clock and it shaved time records to avoid paying overtime.
The Court of Appeal decided a class action was not appropriate because there were too manl differences in schedule and circumstances for the thousands of employee involved. It also reiterated the current law, which is: “employers need not ensure meal breaks are actually taken, but need only make them available.”
Tien v. Tenet Healthcare Corp. (2011) Another case that will turn on the class status. The employer’s policy provided for all the required rest periods, but employees claimed that they could not take the breaks.
There was a huge evidentiary problem because breaks did not get recorded as part of company’s time records, so the only evidence was each person’s story. And that was why the class action was denied.
The Tien court also said that employers were required to allow employees to take breaks, but not required to make them take the breaks.
Hernandez v. Chipotle Mexican Grill, Inc. (2010) Here, an employee who had been fired, sued claiming he was denied rest and meal breaks. Again, the Court of Appeal denied a class action, but decided Mr. Herdandez’ specific claims.
This is a “no good deed goes unpunished” case. Chipotle’s policies “mandated” generous breaks that were more often that required. Chipotle paid for all break times, whether the employees stayed on site or left. It also provided free food and drink to employees and had comfortable break rooms. Breaks were actively encouraged by managers. Managers decided when employees got to take breaks.
Chipotle submitted 57 declarations from employees who stated that they always got their breaks, and 16 declarations from managers saying employees got their breaks and that employees were not allowed to return to work early from break periods.
The employee submitted 23 declarations from employees saying that sometimes the manager would deny or interrupt their breaks.
The evidentiary problem in this case was that no one kept records of the breaks because the break time was all paid anyway. (That also meant that overtime was not an issue in this case, since it would have been paid anyway.)
The Appeals Court found Chipotle had “provided, authorized and permitted” the employees to take their breaks, and that was enough. Chipotle was not required to enforce breaks.
“Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day.” “It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation. . ..”
Faulkinbury v. Boyd & Associates, Inc. (2010). Boyd provides security guard services in Southern California. About 4000 employees claimed that the company required each employee to sign an agreement to take on-duty meals and that they were never permitted to leave their posts for either meal or rest breaks.
However, there is a “nature of the work” exception that allows some types of employers, including security guards, to require on duty meal and rest breaks. This case will probably not survive, no matter how Brinker turns out.
Brinkly v. Public Storage (2008). Plaintiff was a property manager for a storage company, whose policies required employees to take meal and rest breaks. Are you noticing a pattern here?
Employees were required to sign in and out from breaks, but didn’t always do it. Plaintiff said he knew he was supposed to take breaks, but he didn’t always take them on time. He admitted though, that he usually took his breaks at some point.
Again, the Court of Appeal found that the employer was just required to provide the breaks, it was not required to make sure that employees took the break within the required time frames.
You’re Breaking Up
I will keep you posted on how Brinker and the rest of these cases turn out. In the meantime, give employees a break.