The Right to Rest and Meal Periods is at Issue

Brinker v. Superior Court will be decided later this year.  The Court’s decision should clarify important issues of law regarding reset break and meal break rights of hourly California employees.  The Supreme court will tell us when and under what conditions employees are entitled to rest and meal breaks.

The Lower Court’s Ruling

Even though the case was filed as a class action, the Court’s decision will also discuss issues that will impact an individual’s meal and rest break rights.  Brinker is one of the most important labor cases pending before the California Supreme Court today.  The case is important to workers because the lower court’s decision radically limited the right of an employee to obtain damages for denied breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) 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; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) 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. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

If the Court adopts these conclusions, then meal and rest break class actions would be a thing of the past..  Further, if the Supreme Court accepted these conclusions, it will become harder for individual workers to obtain relief for missed meal and rest breaks.

The Questions to be Answered

The restaurant workers asked the Supreme Court to decide a number of questions:

  • Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?

  • Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?

  • When and how frequently must an employer provide meal and rest breaks to its employees?

  • In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

Labor groups and business advocates alike are very interested in the outcome.  Battle lines were quickly drawn. Three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out by the court.

How Will it Turn Out?

The Labor Commissioner ignored other California court decisions that are more favorable to workers’ rights, and cited to federal court decisions interpreting California’s meal and rest break laws.  It did not cite to Cicairos v. Summit Logistics, Inc.  California’s Third District Court of Appeal held that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”  The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

The California Labor Federation responded with sharp criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum.  It has now replaced it with one that sides with the Court of Appeal’s restrictive interpretation of these important employment rights rights.  Governor Schwarzenegger is hopeful the decision will be upheld by California’s high court.

Brinker will immediately impact pending lawsuits, particularly wage and hour class actions.  Whether the Court ultimately decides in favor of the employees or the company,  employment attorneys will have clearer guidance on the issues.

Finally, if the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process in these kinds of cases.

Please reach out to Patrick Kitchin at 415-677-9058, or by email to if you have questions about this or other employment issues.