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.
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
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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