Don't Change Your Meal and Rest Break Policies Just Yet!
by: Jennifer Duggan and Carl Fessenden
In July 2008, the California Court of Appeals made a decision which marked a fundamental shift in California law regarding the issue of rest and meal breaks for employees in the case of Brinker Restaurant Corporation v. the Superior Court (2008) 2008 Cal.App. LEXIS 1138. That case held that employers need only provide rest and meal breaks, not ensure that they are taken. As we predicted, on October 22, 2008 the California Supreme Court accepted review of the Brinker decision. As a result, the Court of Appeal decision has been depublished and is no longer authority which can be relied upon. Technically, the law reverts to pre-Brinker. But not so fast . . .
Earlier this year, the California Division of Labor Standards Enforcement adopted the meal period standards that the Court of Appeal announced in the infamous Brinker decision. That memorandum instructed the DLSE's deputy labor commissioners to follow the court of appeal's decision in Brinker. So now that the California Supreme Court has decided to review the Brinker case, the DLSE has just issued a NEW memorandum which rescinds its Brinker memorandum from earlier this year. (Feel like you are watching a tennis match anyone?) In its new memorandum, the DLSE strongly suggests it will continue to enforce meal period laws such that an employer "need not force" employees to take meal periods - it simply must offer them. Apparently DLSE is treating Brinker as gone but not forgotten. Just to add to the confusion, the Second Appellate District of the California Court of Appeal just issued a decision, Brinkley v. Public Storage, which held that employers are only required to make meal periods available, not ensure that they are actually taken. Another good decision for California employers. However, we must temper our enthusiasm for this most recent development. Given that Brinker was accepted for review by the Supreme Court, we fully expect that the Brinkley will also be accepted for review, or outright depublished.
How should employers proceed? Until the California Supreme Court has made an ultimate ruling on this issue - which could take more than a year - the safest course for employers is to require that meal breaks once again begin between 2.5 hours and 5 hours after the employee has clocked in and take steps to enforce their rest and meal break policies. As always, for more complete analysis or for additional information, employers are encouraged to consult legal counsel.