The Clock is Ticking … The Future of Meal and Rest Break Class Actions Remains to be Seen

The Court of Appeal’s opinion in Brinker Restaurant Corp. v. Superior Court filed on July 22, 2008, addresses several heavily litigated issues regarding meal and rest period claims.

By way of background, the Brinker Restaurant Corporation operates over 100 restaurants in California. Adam Hohnbaum represented a putative class of some 59,000 restaurant workers who are “non-exempt” from overtime, minimum wage, and meal period laws (i.e., servers and other non-management personnel). The plaintiffs alleged a number of claims against Brinker, including failure to provide non-exempt employees with mandated 10-minute rest periods for every four hours worked; failure to provide 30-minute meal periods as required by law; and requiring employees to perform work “off the clock” when they were “punched out” for their meal periods.

On July 22, 2008, the Court of Appeals decided the case and held:

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.

While there were no doubt celebrations being held by employers and their counsel upon review of the Court of Appeals’ decision, the outcome of Brinker and its effect on the future of meal and rest break class action lawsuits is far from finalized.  The latest development in the case happened on August 29, 2008, when the plaintiffs in Brinker filed their Petition for Review in the California Supreme Court. We will continue our coverage of this topic as it develops, so stay tuned and for all those employers out there – – don’t get out the bubbly just yet.

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