In a 7-0 decision published on April 12, 2012, the California
Supreme Court issued its decision in the long-pending Brinker
Restaurant v. Superior Court case. The decision resolved many
of the outstanding issues in California's meal and rest break
laws largely agreeing with the positions asserted by California
The issues that were most watched in the case involved
interpretation of California's meal period requirements. The
two main issues included (1) whether an employer must ensure that
each employee have a duty-free meal period or need only authorize
and permit its employees to take a meal period; and (2) the timing
requirements of such meal periods (plaintiffs had argued that the
law requires a meal period after every 5 hours worked. The Court
ruled in favor of the employer on both main issues.
In deciding that an employer need only relieve the employee of
duty to comply with the meal period requirements, the Court stated:
"the employer is not obligated to police meal breaks and
ensure no work thereafter is performed. Bona fide relief from duty
and the relinquishing of control satisfies the employer's
obligations, and work by a relieved employee during a meal break
does not thereby place the employer in violation of its obligations
and create liability for premium pay." Thus, while an employer
must relieve the employee of work duties during the employees'
meal break, an employer is not required to ensure that the employee
is not working. In essence the employee can do whatever that
employee wants to do during his or her meal break, including
working, if that employee wants to work. Though employers should be
pleased not to be held to the unworkable "ensure"
standard, employers should review their policies to confirm that
those policies are consistent with this new articulation of the
meal break standard.
The Court also rejected Plaintiff's argument that employees
are entitled to a meal break after every period of five hours of
work. In ruling against the "rolling 5" standard sought
by Plaintiffs, the Court held: "section 512 requires a first
meal period no later than the end of an employee's fifth hour
of work, and a second meal period no later than the end of an
employee's 10th hour of work. We conclude further that,
contrary to [plaintiff's] argument, Wage Order No. 5 does not
impose additional timing requirements."
The court also clarified various rest period issues.
Importantly, and again contrary to the plaintiff's position,
the court ruled that rest periods are independent of meal-period
scheduling, meaning that they need not necessarily be arranged in
any particular way around meal breaks. For example, a 10-minute
rest break does not necessarily need to be taken before an
employees' first 30-minute meal break, as argued for by the
plaintiff, it can be taken after, so long as the correct number of
each type of break is taken. The court also wrote, however, that,
during an 8-hour shift, "'[a]s a general matter,' one
rest break should fall on either side of the meal break." The
court also clarified the required timing of rest periods in ruling
that "employees are entitled to 10 minutes' rest for
shifts from three and one-half to six hours in length, 20 minutes
for shifts of more than six hours up to 10 hours, 30 minutes for
shifts of more than 10 hours up to 14 hours, and so on."
In another clarifying point, the Court reiterated that a trial
court can review certain merits issues at the certification stage:
"to the extent the propriety of certification depends upon
disputed threshold legal or factual questions, a court may, and
indeed must, resolve them. Out of respect for the problems arising
from one-way intervention, however, a court generally should eschew
resolution of such issues unless necessary." This portion of
the ruling is similar to the recent holding of the United States
Supreme Court in Wal-Mart v. Dukes.
Though the Brinker decision is generally beneficial for
employers, the implications of the case should be discussed with
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Effective January 1, 2015, certain employers became subject to the employer mandate of the Patient Protection and Affordable Care Act, and thus subject to liability under the ACA Employer Shared Responsibility provisions.