Appellate Court Lets Employers Off Easy For Meal & Rest Periods, Off-The-Clock Work

On July 22nd the Fourth Appellate District issued its revised opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum, et al) (2008) __ Cal.App.4th __. The Court's holding marks a victory for employers and trade associations, who have been working tirelessly to have the state's meal and rest period requirements relaxed. In essence, the decision places the burden on employees to assert their right to meal and rest periods.

More importantly, the decision threatens to make the class action form virtually unavailable for adjudicating meal and rest period claims by requiring courts to ask why each meal and rest period is missed. Unless a class of employees are subjected to a uniform policy or practice prohibiting them from taking meal and rest periods, the decision implies that the need for individualized inquiry is assured.

After giving cursory note to the idea that California's wage and hour laws should be "liberally construed" with an eye to the remedial purpose of the Labor Code, and after noting that the meal and rest period requirements of the Code have a long history in California, the Court nonetheless finds:

With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment. Specifically, we conclude that (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. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.

The decision similarly finds that plaintiffs' off the clock claims require an individualized inquiry, as plaintiffs must show not only that time was worked off the clock, but also that employers had actual or constructive knowledge that the time was being worked. While employer actual or constructive knowledge of off the clock work is not a new requirement in order to establish liability, the decision goes further in suggesting that it is necessary to ask why the off the clock time is being worked:

Plaintiffs propose to prove class-wide violations by Brinker by submitting declarations, statistical evidence and survey evidence showing the number of times employees worked during a meal period and the number of times changes were made to time cards. However, they do not submit evidence showing, on a class-wide basis, the reason why they worked off the clock.

Other language in the decision suggests that employees who work off the clock "by their own choice" even with their employer's knowledge are not entitled to recover for the time worked. If interpreted narrowly, this would mean that non-exempt employees who "choose" to work off the clock are not entitled to compensation for that time. Given that employers are becoming increasingly clever about the kinds of subtle and indirect productivity pressures placed on employees, this kind of interpretation could provide employers with even greater opportunities to exploit their workforces without consequence.

While the decision, already transferred by the Supreme Court back to the Court of Appeal may be a good candidate for cert to the Supreme Court, it will nonetheless disrupt ongoing litigation and impede new lawsuits for some time to come.