How To Comply With Brinker?

By April 16, 2012 Blog, Employment Law

The legal blogs and Internet newsletters have been full of news of the California Supreme Court's Brinker decision on the interpretation of California's meal period and rest break laws.  Justice Werdegar succinctly stated the court's holding that "[A]n employer’s duty…is an obligation to provide a meal period to its employees.  The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so."  

But little attention has been givenso far on what is perhaps the most important question for California employers: What is required, practically, to comply with the mandate that an employer "… relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so." On this important, practical question, the court gave no answer.  Instead, we were told "it depends."  The court stated:

What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.

At one point in the decision the court referred to a 1991 DLSE Opinion Letter responding to a question "concerning employees working in the field free of direct supervision and control."  The DLSE opined that if "the employee has a reasonable opportunity to take the full thirty-minute period free of any duty, the employer has satisfied his or her obligation." (Dept. Industrial Relations, DLSE Opinion Letter No. 1991.06.03 (June 3, 1991)).  But even this begs the question of what an employer must do to provide a reasonable opportunity?  How will the employer's approach vary if the employee works in a more controlled environment, rather than "in the field free of direct supervision and control."  

The Supreme Court is right – the answer depends on the circumstances, but undoubtedly several actions are advisable.  The employer should have a clear policy reinforcing the right to take the meal period and that the employee is free of control or supervision during that uninterrupted period.  If any form of employment letter or agreement is used, it should recite the entitlement and perhaps include a copy of the employee's working hours that displays the meal period. In more controlled environments, daily reminders might be used that announce the period.  When employees are in the field and not under direct supervision, such daily reminders are not practical.  The employee and any immediate supervisor will have to determine when they have a reasonable opportunity to take the meal period, or whether they might choose to work through it.  What is important is that those employees know they have the opportunity, and that California law does not require the employer to "ensure" that it is taken.

What if an employee chooses to work during the meal period.  The question of whether or not the employer knew or reasonably should have known that the employee chose to work during his or her meal period will also generate disputes and questions – if the employer did not know, the employer is not liable for straight time pay.  In footnote 19 of Brinker, the court adopts the DLSE's explanation of the practical pay-no-pay-premium pay implications of working during a meal period:

…  The DLSE correctly explains the distinction in its amicus curiae brief:  “The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked.  The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.”  (See also Wage Order No. 5, subd. 2(K) [defining “ ‘[h]ours worked,’ ” for which compensation is owed, to include “all the time the employee is suffered or permitted to work, whether or not required to do so”].)  

Whether or not an employer reasonably should have known an employee was working during the meal period, and is thus entitled to be paid will be a very factually specific inquiry, and the employer should err on the side of reasonableness.  An email from an employee might be sufficient to trigger the obligation to pay.

Stephen C. Gerrish, Employment Group