As I said in a post on Thursday after the Supreme Court handed down Brinker Restaurant Corp. v. Superior Court (Hohnbaum), ___ Cal.4th ___ (Apr. 12, 2012), the decision overall is a victory for California workers. To explain this, here are six takeaways from the opinion. (For my regular audience, I will have more on the class certification aspects of the opinion in a future post.)
1. California law guarantees lunch breaks for hourly workers in California.
In Brinker, the Supreme Court confirmed that California law "guarantee[s] ... meal and rest periods intended to ameliorate the consequences of long hours." Slip op. at 1 (emphasis added). Misleading news reports may have created doubt about this, but no one should harbor any doubt. Everyone who works more than five hours in a shift and who wants a lunch break still gets to take one after Brinker.
2. Workers must be actually relieved of all duty by their employers for their meal periods. Workers must be free to leave the workplace and may use the meal period time for whatever purpose they desire.
In the Brinker case, the Supreme Court addressed the scope of an employer's obligation to "provide" meal periods under California law, and considered exactly what employers must do to comply with the law.
Here is how the petition for review described this issue:
Under the Labor Code (§§226.7 and 512) and Industrial Welfare Commission (“IWC”) Wage Orders (¶11), must an employer actually relieve workers of all duty so they can take their statutorily-mandated meal periods, as held in Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005), review & depub. denied, no. S139377 (01/18/06)? Or may employers comply simply by making meal periods “available,” as held in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal.App.4th 25 (Jul. 22, 2008)?
Petition for Review at 1 (footnote omitted); see also Opening Brief on the Merits at 1, 4, passim.
The Supreme Court agreed with the workers that an employer must actually relieve workers of all duty so they can take their statutorily-mandated meal periods, as held in a 2005 case called Ciciaros v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005). Slip op. at 36 (citing Cicairos). In so holding, the Court also cited two other worker-friendly decisions that interpreted the employer's duty in the same protective way. See id. (citing Jaimez v. Daiohs USA, Inc., 181 Cal.App.4th 1286 (2010), Dilts v. Penske Logistics, LLC, 267 F.R.D. 625 (S.D. Cal. 2010)).
Notably, the Brinker opinion does not so much as mention the main decisions relied on by the employer (and by the Court of Appeal below and by other appellate panels thereafter), Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D. Cal. 2008) and White v. Starbucks Corp., 497 F.Supp.2d 1080 (N.D. Cal. 2007). Brown and White tried to distinguish Cicairos and held that the employer need only "offer" meal breaks or make them "available." Those courts relied on a dictionary definition of the word "provide," which the Supreme Court conspicuously did not adopt, holding instead that the word "provide" in Labor Code section 512 is "shorthand for the requirement contemplated in subdivision 11 of most of the IWC's wage orders." Slip op. at 31.
In short, it is safe to say that for guidance after Brinker, lower courts should look to Cicairos, Jaimez, and Dilts, as Brinker construed those decisions, and not Brown or White.
The Supreme Court did reject an additional part of the workers' argument, based on a 2010 Supreme Court decision, Martinez v. Combs, 49 Cal.4th 35 (2010), which interpreted the word "employ" as used in the Wage Orders. The Supreme Court held that the employer is not obligated to "prohibit work" during meal periods. Brinker, slip op. at 33. While the term "employ" is defined in the Wage Orders as to "engage, suffer or permit" to work, the Court reasoned that the phrase "[n]o employer shall employ," which appears in the Wage Orders' meal period provisions, is "part of the definition of the trigger [of the meal period obligation], not of the obligation [itself]." Id. at 34. Put another way, if a worker is "employed" (that is, suffered or permitted to work) for a shift exceeding five hours, that worker is entitled to the thirty-minute meal period described in the Wage Orders. See id.
This part of the holding is why many employers have expressed satisfaction with the Brinker opinion. We argued, in part, that employers were required to ensure that workers actually took their meal periods, not merely by relieving workers of all duty, but also by prohibiting work during meal periods. The Court held employers need not "police" the workplace for this purpose (id. at 36) — which is not something we argued was necessary to comply with the standard we advanced. Nonetheless, many employer-side interests have expressed relief that the Court did not go that far.
Still, the employer who sits back and takes "no responsibility" for complying with the meal period laws beyond making meal periods "available" does so at its peril. Id. at 27. Brinker holds that the employer must take the active step of "afford[ing] an off duty meal period," which means "actually relieving an employee of all duty" and "relinquish[ing] control over their activities," without "pressuring employees to perform their duties in ways that omit breaks," and without "exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks." Id. at 35-36 (emphasis added). Adopting a written policy that purportedly "allows" meal periods is not going to be enough. See id. at 36. What is required of the employer is to afford workers "[b]ona fide relief from duty and the relinquishing of control" over the workers' activities. Id.
Brinker thus preserves significant worker protections that the lower court's opinion, and the employer-side interests, would have stripped entirely away. Given where things stood after the Court of Appeal issued its (now-superseded) opinion in 2008, this is a major win for workers.
3. Workers are entitled to a ten-minute rest break for every four hours worked or major fraction thereof.
The Court of Appeal's superseded opinion in this case would have halved the number of rest breaks that workers would get during an ordinary workday. Here is the statement of this issue in the petition for review:
Under the Labor Code (§226.7) and Wage Orders (¶12), which require ten minutes’ rest time “per four (4) hours or major fraction thereof,” must employers provide a ten-minute rest break to employees who work between two and six hours, a second ten-minute rest break to employees who work more than six hours and up to ten, a third ten-minute rest break to employees who work more than ten hours and up to fourteen (etc.), as stated in DLSE Op.Ltr. 1999.02.16? Or may an employer compel employees to work an eight-hour shift with only a single rest break, as held in Brinker?
Petition for Review at 1-2.
Answering this question, the Supreme Court rejected the Court of Appeal's holding in Brinker and adopted the workers' position, ruling as follows:
Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.
Brinker, slip op. at 20. What this means as a practical matter is that 10-minute rest breaks accrue at the second, sixth, and tenth hours of work, rather than at the fourth and eighth hours, as the Court of Appeal erroneously held. The Supreme Court reached this conclusion by adopting the workers' argument as to the meaning of the phrase "ten (10) minutes net rest time per (4) hours or major fraction thereof." Id. at 18-22 (quoting Wage Order 5, ¶12(A) (8 Cal. Code Regs., §11050, ¶12(A)) (emphasis added). As we pointed out, in longstanding IWC and DLSE parlance, "major fraction" of four hours means any time over two hours. Id. at 19.
So, on an eight-hour shift, your first ten-minute rest break accrues once you've completed two hours' work and begun the third hour, and your second ten-minute rest break accrues once you've completed six hours' work and started the seventh hour. The rest breaks must then be scheduled, to the extent practicable in good faith, "in the middle of each work period." Id. at 22 (quoting Wage Order 5, ¶12(A)).
The Supreme Court rejected the employers' construction of the Wage Orders, adopted by the Court of Appeal below, which would have meant that "[a]n employee working a seven-hour shift ... would be entitled to only 10 minutes' rest" — in effect, a single rest break in an 8-hour day. Id. at 20. This again is an important win for workers.
4. Employers may not require workers to push their lunch to the end of the workday. Instead, workers must be relieved of duty for lunch no later than the end of the fifth hour of work.
The Supreme Court also addressed whether employers are required to relieve workers of duty for their lunch periods at any particular time during the workday.
This is how the issue was described in the petition for review:
Do the Labor Code (§§226.7 and 512) and Wage Orders (¶11) impose a timing requirement for meal periods? Or can employers provide a meal period at any time during a shift of up to ten hours without becoming liable for an extra hour of pay under section 226.7(b), as held in Brinker?
Petition for Review at 1.
The Supreme Court held that California law "requires a first meal period no later than the end of an employee's fifth hour of work." Brinker, slip op. at 37 (emphasis added); see id. at 38 ("first meal periods must start after no more than five hours"). For employees on long shifts, the law also requires "a second meal period no later than the end of an employee's 10th hour of work." Id.
What this means as a practical matter is that employers cannot require workers to take "lunch" during the last hour of an eight-hour workday or just before the worker goes home. This is a significant ruling for employees, because pushing meal times to the end of the workday has been a common form of employer subterfuge, and the Court of Appeal's opinion in this case (now superseded by the Supreme Court's ruling) would have allowed it.
The second part of this question is whether employers may require workers to take "lunch" at the beginning of the workday, as opposed to the end of the workday. The answer to this question, according to the Supreme Court, is yes. Unless you are fortunate enough to work in the motion picture industry (governed by Wage Order 12), your employer may adopt an "early lunching" schedule and require you to take "lunch" during your first hour of work, and then continue working the rest of the day, potentially up to 9.5 more hours straight, without a second meal period. Brinker, slip op. at 43-47.
Motion picture industry workers, by contrast, are entitled to meal periods at six-hour intervals. Id. at 47 & n.26. If an employer in that industry requires workers to take "lunch" from 9:00-9:30 a.m., the employer must relieve those workers of duty for a second meal period no later than six hours after the first one, at 2:30 p.m. For everyone else, the employer can require them to keep working until 7:30 p.m., for a total of 10 hours, with no further meal period.
This is probably the biggest loss for workers in the Brinker opinion. As a result of this holding, it is now a very real possibility that many California employers will try to flout the purpose of the meal period laws by adopting mandatory "early lunching" schedules, which were relatively uncommon before. It requires a legislative fix, especially given the disparity in treatment of certain workers in the motion picture industry, who now enjoy significantly greater protections for no discernible industry-specific reason.
The Supreme Court agreed with our painstakingly-developed argument that the historical Wage Orders, dating back to the 1940s, prohibited "early lunching" without a second meal five hours later. Slip op. at 41-43. The Court went on to hold, however, that in the 2001 series of Orders, the IWC "abandoned any requirement that work intervals be limited to five hours following the first meal break." Id. at 44. I must very respectfully disagree with the Court's conclusion here, and hope that a legislative fix will be soon adopted.
5. As a general matter, meal and rest break time should be appropriately spaced throughout the workday.
The second rest break question raised in the Brinker case was whether the first rest break must be allowed before the first meal period. As framed in the petition for review:
Under the Labor Code (§226.7) and Wage Orders (¶12), may employers withhold the first rest break until after the first meal period, as held in Brinker?
Petition for Review at 2.
The Supreme Court held that the wage orders do not categorically require that the first rest break precede the first meal period. Brinker, slip op. at 22-23. "Employers are ... subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible." Id. at 22 (emphasis added).
However, the Supreme Court did agree that as a general matter, in the context of an ordinary eight-hour shift, "one rest break should fall on either side of the meal break." Id. at 23. While "[s]horter or longer shifts and other factors that render such scheduling impracticable may alter this general rule" (id.), it follows that the ordinary workday should generally consist of a rest break in the morning (accrued at the end of the second hour), a lunch break near the middle of the day (no later than the end of the fifth hour), and another rest break in the afternoon (accrued at the end of the sixth hour). To deviate from this "general," "preferred" schedule, the employer will have to make a case that adhering to it is "impracticable" or "infeasible."
Thus, if an employer adopts a companywide practice of not authorizing a rest break before the first meal period (such as, for example, by adopting "early lunching" schedules that leave no time for a rest break before the meal), that practice can still be challenged under Brinker. It is not categorically unlawful in every workplace, but in some workplaces, it may be.
In other words, the Court confirmed the basic outlines of the protective meal and rest break structure of the Wage Orders, first established by the IWC decades ago.
6. The IWC may adopt meal period and rest break requirements that are more protective than those of the Labor Code
This part of the Supreme Court's holding may be of more direct interest to employment lawyers than to laypersons. The Supreme Court reconfirmed the longstanding rule of Industrial Welfare Commission v. Superior Court (Cal. Hotel & Motel Assn.), 27 Cal.2d 690 (1980), which held that the IWC Wage Orders may be more protective than the Labor Code's minimum floor. The Supreme Court applied that rule to meal periods notwithstanding Labor Code section 516, which the employers had argued (and the Court of Appeal held) repealed that holding for meal periods. Brinker, slip op. at 39-40.
The IWC has long been understood to have the power to adopt requirements beyond those codified in statute. (Industrial Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 733; Cal. Drive-in Restaurant Assn. v. Clark, supra, 22 Cal.2d at pp. 292-294; see also ante, at p. 17.) Section 516 creates an exception; it bars the use of this power to diminish section 512’s protections: Except as provided in Section 512, the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers.” (Italics added). While the Legislature in section 516 generally preserved the IWC’s authority to regulate break periods, it intended to prohibit the IWC from amending its wage orders in ways that “conflict[] with [the] 30-minute meal period requirements” in section 512. (Legis. Counsel’s Dig., Sen. Bill No. 88 (1999-2000 Reg. Sess.) 6 Stats. 2000, Summary Dig., p. 212; see Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 438.) In the absence of a conflict, however, the IWC may still augment the statutory framework with additional protections on matters not covered by section 512; that is, the Legislature did not intend to occupy the field of meal period regulation. (See, e.g., Assem. Com. on Labor & Employment, 3d reading analysis of Sen. Bill No. 88 (1999-2000 Reg. Sess.) as amended Aug. 10, 2000, p. 4 [authorizing the IWC to regulate so long as the orders it adopts are “consistent” with § 512]; § 226.7 [imposing premium wages for violations of the IWC’s meal period provisions, rather than § 512].)
Brinker, slip op. at 39-40 (italics in original; bold added). The opinion went on to discuss whether the Wage Orders provided greater protections than the Labor Code when it comes to meal period timing (addressed above).
The IWC has been defunded since 2004 (as the Brinker opinion itself notes (slip op. at 17 n.8)), but whenever its activities resume, this part of Brinker will provide helpful guidance.
In conclusion, there are parts of Brinker that each side can be proud of. But I for one am most proud of how far the Court was willing to go to maintain meaningful meal period and rest break protections for California workers.
As will be seen in my next post on this case, the Court was likewise willing to preserve the class action mechanism as a means of enforcing these protections.
