Quote of the Day - Loyalty to petrified opinion never yet broke a chain or freed a human soul.
Employers are not required to make workers take breaks, according to the ruling in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __ (a 63-page opinion), just make them available. Here's what the ruling actually says: while employers can't discourage or keep employees from taking rest periods, "they need only provide, not ensure, rest periods are taken."
The opinion reasons employers must only authorize and permit rest periods during a particular time, but they don't have to be in the middle of the day and employers aren't required to provide a meal period for every five consecutive hours worked. Instead, employer need only provide meal periods, but "not ensure they are taken;" and can only be held liable for employees working off the clock if employers knew or should have know they were doing so.
My good friend Mike Walsh believes the case conflicts with prior court opinions, including Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005), and says, "With Brinker and Cicairos presenting such starkly contrasting views on California law, with Brinker presenting so many novel ideas regarding wage and hour claims and class actions, and with so many U.S. District Court cases disagreeing with Cicairos and each other, this case looks like an outstanding candidate for Supreme Court review."
My other good friend, Kimberly Kralowec who was co-counsel for the class that was decertified, is disappointed with the ruling, and says, "I [ ] believe that the new Brinker decision creates a split in authority with Cicairos, and I also believe that the Supreme Court often grants review to resolve issues that are the subject of a split among the lower courts, particularly when two Court of Appeal panels have handed down conflicting published opinions."
One thing we all agree on is that the Supreme Court may likely take up these cases and issue a clarifying ruling. But I must respectfully disagree with my learned colleagues on the conflict between the cases on the issue of whether the conflict arises over both rest periods and meal breaks. I think the conflict only involves meal breaks and the two cases are consistent on the point of rest periods. I've quoted the Brinker language above.
Here's what Cicairos says on rest periods, "Wage order No. 9 contains a section entitled 'Records' in which it lists information that the employer is responsible for keeping. (Cal. Code Regs., tit. 8, § 11090, subd. (7).) It specifically notes, however, that 'authorized rest periods need not be recorded.' (Id. at subd. (7)(A)(3).) '[A]s long as an employer authorizes and permits his employees to take their required rest periods (and clearly communicates this authorization and permission), the employer will not be liable for the rest period penalty if the employees fail to take the full amount of authorized time for their rest breaks, provided that the employees did not forego the full rest period as a result of employer coercion or encouragement.' (Dept. of Industrial Relations, DLSE Opinion Letter 2001.04.02, p. 5.)"
On the other hand, as both Kimberly and Mike correctly note, Brinker takes the position that meal breaks do not need to be recorded, while Cicairos rules they do need to be recorded. Frankly, I've never quite understood the reasons for the difference. If you're not required to record the rest periods, then why should you be required to record the meal breaks? Both are a half an hour. There's really no policy reason for the different treatment.
The real problem is whether the employer has a policy - either overt or hidden - of discouraging either kind of break. If the employees are allowed to take meal breaks and rest breaks without interference, then why isn't that policy acceptable? At some point, employees have to take responsiblity for their own well-being and take a break if they want one, as long as they are allowed to take the breaks either when they want or during a scheduled time.
We'll need a higher court and good reasons to settle this dispute.