Brinker Restaurant
Corp., which operates the popular Chili’s Grill & Bar, Romano’s Macaroni
Grill, and Maggiano’s Little Italy restaurants, was hit with a class action
lawsuit on behalf of a whopping 59,000 restaurant workers, charging that
Brinker didn’t follow
meal and rest break rules. A
appeals court ruled in Brinker’s favor, in what seemed to be a key victory for
employers on the meal and rest period front. But as we went to press, the
opinion was vacated, and the status is now unclear. We’ll explain what the case
is about.
Early Lunch and Break
Practices Attacked
The employees accused
Brinker of illegally failing to give workers a rest break before a
scheduled early meal break (see below) and discouraging workers from taking
rest breaks. For example, Brinker allegedly required servers to transfer their
tables and tips to another server if they took a break.
The suit further charged
that Brinker sometimes made employees take lunches just an hour into the workday,
and then required them to go the rest of the workday, often more than five
hours, without another meal period. The employees contended that this violated California
law because, they said, a “rolling five hour” period is required, meaning that
an employer must provide a meal period for each five-hour block of time,
regardless of how many hours are worked in a day. Under this scenario, for
example, if an employee takes a meal period just one hour into his or her shift
and then works another five hours, a second meal period is required, even if
the employee will not work 10 hours that day, which is the ordinary trigger for
a second meal. Brinker, however, argued that its “early lunching” practice was
indeed legal because the law required it to provide a first meal period to
hourly employees when they worked more than five hours— and that meal period
could occur any time during that work period—and a second meal period wasn’t required
until employees worked more than 10 hours.
The trial court agreed
with the employees that the case raised questions of fact and law that were
suitable to be decided in a class action.
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Victory for Employers
But a
class certification order, ruling that the trial court based its decision on
incorrect assumptions about the law.1 The appeals court ruled as follows:
• Rest breaks.
require employers to permit rest breaks before the first scheduled meal period.
Rather, the Wage Orders state that rest breaks should be in the middle of work
periods, if practicable, or feasible. Thus, an employee could take an
early meal break and also take a 10-minute rest break in the middle of the
subsequent four-hour work period, and still comply with the Wage Orders. What’s
more, whether it’s OK to schedule a late break depends on whether it was
practicable in a given instance, which is an individual issue and can’t be
litigated on a class-wide basis. And, claims for missed rest breaks aren’t
appropriate for a class action because they require individual evidence to ascertain
whether the missed break resulted from a supervisor’s coercion or an employee’s
uncoerced choice to forego the break.
Claims for missed rest breaks aren’t appropriate
for a class action because they require individual evidence to ascertain whether
the missed break resulted from a supervisor’s coercion or an employee’s uncoerced
choice to forego the break, the appeals court ruled
• Meal breaks. The
law does not impose a rolling five hour meal period requirement (i.e.,
that a meal period must be taken for every five-hour block of work).
have a duty to provide, or make available, a first 30-minute meal period to an hourly/nonexempt
employee who works more than five hours per day, unless the total work period
that day will be six hours or less and the employer and employee agree to waive
that meal period. This interpretation, ruled the court, permits Brinker’s practice
of early lunching, as a second meal period would not be required unless the
employee works at least 10 hours for the day.
The appeals court also
ruled that the trial court had to decide whether Brinker had a duty to ensure
that employees actually took their meal breaks, as the appropriateness of class
certification depended on the outcome of that legal issue.
What’s the Impact?
This decision makes the
following points clear regarding meal and rest breaks:
1. One 10-minute rest
break must be made available 3for every four hours of work. The break must be
scheduled in the middle of that work period if it is possible to do so. Also,
employers don’t have to ensure that employees take rest breaks.
2. Employees are
entitled to one 30-minute meal period for each work period of more than five
hours a day. This does not mean that a second meal period must occur within
five hours of the first; rather, a second meal period must occur if the
employee works at least 10 hours in the day. Consequently, requiring employees to
take an “early lunch” doesn’t violate the law.
Unfortunately, the
appeals court didn’t decide the burning issue of whether the requirement to
“provide” a meal break means employers must force or ensure that employees take
meal breaks. What it did do, however, is provide an encouraging glimpse into
how it might rule in the future. In particular, the court referred in a
positive way to the recent Starbucks ruling issued by a federal court in
that decision isn’t binding on the state courts), holding that employers must
only make meal periods available. In another good sign, the court emphasized
that the dictionary definition of “provide” is to supply or make available.
The Brinker decision was
unpublished, meaning that other courts could not rely on it as precedent.
However, various employer proponents—and even the labor commissioner—asked the
court to publish the case so it could be relied on. As it turns out, the
decision was never finalized, and thus publication could not be ordered. Thus,
the ruling has now been vacated, and the appeals court likely will reissue the
decision— although it’s unclear whether it will take the same form as the
original opinion. We’ll keep you posted.
_
1 Brinker Restaurant
Corp. v. Superior Court,
Court of Appeals (Dist. 4) No. D04931, 2007
(unpublished)