Employees May Choose a Working Lunch (But Employers Beware): An Analysis of Brinker Restaurant Corp. v. Superior Court

Employees May Choose a Working Lunch (But Employers Beware): An Analysis of Brinker Restaurant Corp. v. Superior Court

In Brinker Restaurant Corp. v. Superior Ct, the California Supreme Ct, gave employers a major, if incomplete, victory, holding that employers must provide (not ensure) that meal periods are taken. But what affirmative steps -- if any -- must employers take to encourage breaks? Under a "provide" standard, when -- if ever -- will class certification be appropriate? Employers should expect litigation to continue, but can take steps now to reduce risk.

Excerpt:

In Brinker Restaurant Corp. v. Superior Court, a unanimous California Supreme Court gave employers a major, if incomplete, victory, holding that employers' statutory obligation to "provide" employees with meal periods does not mean that employers must ensure that those meal periods are taken. Employers may not impede or discourage employees from taking meal periods, but they satisfy their obligations if they relieve employees of all duty, relinquish control over the employees' activities, and permit them a reasonable opportunity to take a meal period.

Because a determination of the reasons why employees did not take breaks ordinarily will require individualized inquiry - whether an employee was urged to forego a break or voluntarily elected to skip it makes all the difference under the Court's "provide" standard - Brinker will make it considerably more difficult to certify meal period classes. Brinker declined, however, to foreclose meal period class actions categorically, and indeed, remanded to the lower court for reconsideration of class certification on plaintiffs' meal period claims.

Additionally, the Court resolved ambiguities in the statutory and regulatory framework regarding the timing of meal periods and rest breaks, providing employers with clear guidance and employees with clear expectations.

Still, much remains unsettled following Brinker. Employers now know that they need not police employees to ensure that breaks are taken. But what affirmative steps - if any - must they take to encourage breaks? And under a "provide" standard, when - if ever - will class certification be appropriate? The Court declined to resolve these questions definitively. Employers should expect litigation to continue, but can take steps now to reduce risk. [footnote omitted]

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