Let's Take a Break—Do We Have To?January 1, 2009
Do employers have to force employees to take workplace rest breaks? Even though state agencies can impose penalties for employers failing to provide lunch and rest breaks, California and Oregon civil courts say no in overtime-pay civil-liability cases.
In the California case, Brinker Restaurant Corp., et al. vs. The Superior Court of San Diego County, 165 Ca., App. 4th 25, a group of servers brought a class action against the operator of 137 restaurants alleging violations of that state’s meal-and-break workplace requirements. The employer allowed servers to take breaks in the first hour of an 8-hr. shift. The servers contended that the company was required to provide a second meal period within 5 hr. of that initial break.
The California Wage Orders contain two pertinent mandates on employers. Employers must:
1) Provide rest periods for every 4 hr. or major fraction thereof worked per day to non-exempt employees; and
2) Provide meal periods for days on which non-exempt employees worked in excess of 5 hr., and to provide second meal periods for days employees worked in excess of 10 hr.
The servers claimed that their employer engaged in unlawful “early lunching” by requiring them to take their meal periods soon after they arrived, usually within the first hour, and then requiring them to work in excess of 5 hr., and sometimes more than 9 hr. straight, without an additional meal period. The servers sought overtime pay for these alleged wage-law violations and other statutory relief.
The trial and appellate courts both examined the company’s policies.
Rest-break and meal-period policy—Brinker’s written policy provided that with regard to meal breaks, in a form to be signed by the employee, “I am entitled to a 30-min. meal period when I work a shift that is more than 5 hr.” The form also provides, as to rest breaks, “If I work more than 3.5 hr. during my shift, I understand that I am eligible for a 10-min. rest break for each four hours that I work.” The policy also provides that an employee’s failure to follow the foregoing policies “may result in disciplinary action up to and including termination.”
Working-off-the-clock policy—Brinker’s hourly employee handbook states: “It is your responsibility to clock in and out for every shift you work. You may not begin working until you have clocked in. Working ‘off the clock’, for any reason is considered a violation of company policy.” It also states, “If you forget to clock in or out, or if you believe that your times records are not accurate, you must notify a manager immediately, so that the time can be accurately recorded for payroll purposes.”
Employer’s Defense Contentions—Brinker argued that a rest-break class should not be certified because:
1) Under California Wage Order No. 5, paid rest breaks need only be permitted, not necessarily taken;
2) Brinker permitted its employees to take rest breaks;
3) Whether employees took the rest breaks Brinker provided required a “hopelessly individualized” inquiry; and
4) Individual issues thus predominated.
Brinker also argued that a meal period class should not be certified because:
1) Under the Wage Order, unpaid meal periods need only be provided, not necessarily taken;
2) Plaintiffs’ “rolling, 5-hr. approach to meal periods,” which “would call for a second meal period for work days with fewer than 10 hr. unless the first meal is taken exactly mid-shift,” was wrong because “under the language of the Wage Order, an employee working more than 5 hr., but fewer than 10, is entitled to one 30-min. meal period at some point during the work day,” and the law on its face called for a second meal period only when more than 10 hr. are worked”;
3) Brinker provided all required meal periods to its employees;
4) Whether each employee was provided with meal periods as required by law “varied person-by-person, shift-by-shift, and day-by-day, and involved hundreds of individualized inquires”; and
5) Individual issues thus predominated over class-action issues.