In the spring of 2012, the California Supreme Court issued its highly anticipated ruling in Brinker Restaurant Corporation v. Superior Court. The decision clarified businesses’ legal obligations regarding meal and rest breaks, an area that had generated many lawsuits.
Now, many companies are still grappling with these legal issues. They include some big-name employers, like Apple and SpaceX, which are facing claims that they failed to provide workers with mandated breaks. In July, a California court approved class certification in the Apple case.
In Brinker, the California Supreme Court ruled that employers must simply provide meal breaks–not monitor workers to ensure they’re actually taking those breaks. Although this finding was considered a win for employers, the Brinker decision wasn’t a complete victory for companies. The ruling also included important language on class certification, which has emboldened plaintiffs’ lawyers to continue bringing cases.
For employers trying to avoid legal trouble, there are three crucial steps. The first is having a clear policy that complies with the law. The second step is keeping accurate, detailed records. Third, companies should offer workplace training on this topic.
The Brinker decision clarified that companies must provide nonexempt employees with a 30-minute meal period after no more than five hours of work, and a second meal break after no more than 10 hours of work (unless there’s a waiver).
Companies satisfy their obligations if they: relieve workers of all duties and relinquish control over their activities for the duration of each break; offer a reasonable opportunity to take an uninterrupted, 30-minute meal break; and don’t impede or discourage employees from taking their meal periods.
Also, businesses must permit a 10-minute rest break for nonexempt employees who work at least 3.5 hours, according to the Brinker ruling. The decision provided specific guidelines. For instance, employers must allow one rest period for shifts of 3.5 hours to 6 hours, and two rest breaks for shifts of more than 6 hours and up to 10 hours.
If an employer violates these requirements, then the company owes the worker one additional hour of pay for the missed break period.
Brinker Offers Some Cheer for Plaintiffs’ Lawyers
The Brinker decision included language on class certification that was welcomed by plaintiffs’ attorneys, said attorney David Cheng, of Ford & Harrison in Los Angeles. If a plaintiff alleges that a company’s uniform policy violates the law, then those claims generally are suited for class treatment, according to the Brinker ruling.
In Brinker, the California Supreme Court stated, “Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.”
The court added: “We observe in closing that, contrary to the Court of Appeal’s conclusion, the certifiability of a rest break subclass in this case is not dependent upon resolution of threshold legal disputes over the scope of the employer’s rest break duties.”
In the pre-Brinker era, employers had been deluged with meal-and-rest-break cases. In the years following the decision, attorney Walter Stella said he has seen fewer of these cases. But he believes that post-Brinker cases are being brought “on better facts.”
In general, two types of meal-and-rest-break cases are being filed, said Stella, of Miller Law Group in San Francisco. One type focuses on employers’ policies–alleging either the absence of a policy, or that the policy is noncompliant.
Stella said the Apple suit is an example of a policy-focused case. The case, filed in 2011, alleges the company had a noncompliant meal-and-rest-break policy. It gained momentum in July, when Superior Court Judge Ronald Prager granted class certification in Felczer v. Apple Inc. The class includes nearly 21,000 current and former Apple workers.
According to evidence cited in the class certification order, the company’s previous policy failed to inform nonexempt workers that they were permitted to take a meal break within the first five hours of every shift. The policy was in effect from December 2007 to July 2012.
The other kind of case focuses on employers’ practices. In this type, plaintiffs allege that the job requirements are somehow inconsistent with taking breaks, or that the company offers financial incentives that encourage workers to miss their breaks. For instance, if a company encourages workers to accomplish tasks within a certain amount of time to receive a bonus, plaintiffs might allege this is an incentive to miss breaks.
The SpaceX case “seems to be an example of a companywide practice that was being applied to employees,” Stella observed. In Smith v. Space Exploration Technologies Corp., a former employee sued the company in August, claiming that workers’ demanding schedules didn’t allow them to take their breaks.
Class certification in the SpaceX case hadn’t yet been addressed. In general, though, “classes continue to be certified when job requirements or financial incentives exist that lead to uniform violation of meal-break laws,” according to Stella.
Apple and SpaceX didn’t reply to requests for comment on the cases.
Following the Brinker ruling, courts have been split on the issue of class certification in meal-and-rest-break cases, according to lawyers.
For instance, some post-Brinker decisions have held that class certification is suitable in cases involving the lack of a compliant policy. Two such cases are Benton v. Telecom Network Specialists and Bradley v. Networkers International.
By contrast, in Cummings v. Starbucks Corp., the employer lacked a compliant written policy–but the court nevertheless denied class certification. Despite the defective written policy, the court also considered how Starbucks’ policies were actually applied to employees, Cheng said. In March, a U.S. District Court judge found that “the evidence in the record here does not indicate that Starbucks’ facially defective rest-period policy was consistently applied to deprive class members of a second rest period.”
Likewise, in Ordonez v. RadioShack Inc., the plaintiff alleged that RadioShack had a noncompliant rest-break policy, but a California federal court in August rejected class certification. Although the court stated that the company’s rest-break policy “is likely inconsistent with California law,” it added that the plaintiff hadn’t provided a “viable classwide method of showing whether that policy was actually implemented.”
Nevertheless, it appears that class actions for alleged meal-and-rest-break violations are here to stay, lawyers say.
“We’re going to keep getting them,” said John Skousen, an attorney at the Irvine, Calif. office of Fisher & Phillips.
Guidance for Employers
The first thing companies should do is have a policy that complies with the law. It’s obvious, but employers can still get tripped up on this and end up in legal trouble.
“If the policy is noncompliant, there is an opening for a plaintiff class to be certified on the basis that the noncompliant policy was being applied to all class members,” Stella said.
The second key step is accurate, detailed record-keeping. Employers are required to record meal breaks; rest breaks don’t have to be recorded.
Even before Brinker, many companies already were taking a “very conservative, cautious approach” to record-keeping, according to Skousen. Though some employers have since tightened up their procedures, many haven’t needed to, as they were already carefully recording this information, he said.
Even when employers do record meal breaks, employees could claim that they were somehow forced to work through their meal periods while clocked out, Cheng said. For that reason, employees should verify their work hours and breaks to ensure the records are accurate, he advised.
The exact system of record-keeping varies by employer, Stella said. For instance, employees could fill out a sheet at the end of each week certifying their hours or breaks, or they could verify the information each day.
“There’s a range of what’s acceptable in terms of record-keeping,” he said. “The more information in the records with respect to hours worked and breaks, the better.”
Whatever type of system used, the key is for the information to be accurate, Stella emphasized.
Special challenges can arise when employees–like plumbers or truck drivers–work out in the field, Skousen said. He noted that the trucking industry continues to face many lawsuits alleging that workers were deprived of breaks.
To deal with these challenges, employers should be very careful about staffing, and they should be familiar with record-keeping systems that are useful for remote workers, Skousen added. For example, offsite workers can track their hours and breaks on their smartphones, and some companies use manual logs that are turned in at the end of the pay period.
Skousen also urged caution in another area: the taking of early meal periods. The Brinker decision permits early meal breaks, which is particularly important in the hospitality industry, he said. But this can be a confusing area. One source of confusion could be coordinating early-meal periods with rest breaks.
“And typically you never combine them, although sometimes employers make the mistake and give in to employee requests for coming up with a formal schedule combining an early meal period with a rest period,” Skousen said.
He advises employers to consult legal counsel if they plan to offer early meal breaks.
If an employee wants to waive a meal period altogether, it’s best to get that in writing, even though it’s not required, Skousen added.
He noted that this is sometimes confused with an “on-duty meal period agreement,” which technically is not a waiver but constitutes one of two methods of providing meal periods. The on-duty meal period agreement must be in writing, must be paid and must contain language that the employee can revoke it at any time, according to Skousen. Also, the nature of the job must prevent the worker from being relieved of all duty.
Meanwhile, employers should strive to ensure that job requirements–and financial incentives–are compatible with taking required breaks.
To make sure that bonuses and other financial incentives are in line with all requirements, Stella recommends that the human resources, legal and finance departments work together.
Finally, for the third step, be sure to train managers and workers on all of the proper procedures.
By following all these steps, an employer can try to avoid becoming the next defendant. And if a lawsuit comes along anyway, at least the company will be prepared to defend its policies and practices.
Toni Vranjes is a freelance business writer in San Pedro, Calif.
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