Thursday, April 12, 2012

Unpacking The Brinker Court’s Construction Of California’s Meal and Rest Break Provisions

Having had some time to digest the Court’s opinion, the most surprising aspect (at least in my mind), is that the Court’s opinion is largely non-surprising.  Rather than engaging in a broad analysis of the meaning of the Wage Order’s various meal and rest break provisions, the Court has strictly limited its analysis to only those issues necessary to resolve the certification questions in the case at hand. In this regard, the real value of the Brinker opinion, at least from the plaintiff’s perspective, appears to lay in the Court’s certification analysis, which unquestionably disposes of the common belief held by many in the defense bar that meal and rest period claims are “hopelessly uncertifiable.”  Due to the number of issues in play, today’s post will be limited to the Court’s analysis relating to the construction of the meal and rest break provisions, with subsequent posts addressing the Court’s analysis regarding certification.

Meal Period Requirements: With regard to meal periods, the Court concluded that “[a]n employer’s duty ... under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees” [Slip Opinion, at 36 (emphasis added)], which the Court concluded “is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.”  See Slip Opinion, at 30; id., at 36 (“The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”).

Importantly, the Court’s finding in this regard has a direct correlation to the fact the Wage Order’s definition of “hours worked” provides for two independent standards: one based on “control” and the other on being “suffered or permitted to work...” See 8 CCR 11050(2)(K) (“‘Hours worked’ means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work….”); see also Morillion v. Royal Packing Co., 22 Cal. 4th 575, 582 (2000) (“While cases interpreting the phrase ‘hours worked’ have not thoroughly examined the definition's scope or defined the relationship between the two clauses, they nonetheless support the view that the ‘suffered or permitted to work’ clause in Wage Order No. 14-80 does not limit the ‘control’ clause under the definition of ‘hours worked.’”).  Ironically, the Court reasoned that this dual standard is what precluded a construction saddling an employer with an obligation to “ensure” employees in fact have ceased all duties, as doing so would require an employer to assert control over the employee:
Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time. (See Morillion v. Royal Packing Co., supra, 22 Cal.4th at pp. 584-585 [explaining that voluntary work may occur while not subject to an employer’s control, and its cessation may require the reassertion of employer control].)
Slip Opinion, at 33-34.

In addition, the Court also makes clear that an employer’s obligation cannot be met by merely enacting a lawful meal break policy, as the employee must also be free of barriers which impede or discourage the taking of breaks:
[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963; see also Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th at pp. 1304-1305 [proof of common scheduling policy that made taking breaks extremely difficult would show violation]; Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [indicating informal anti-meal-break policy “enforced through ‘ridicule’ or ‘reprimand’ ” would be illegal].) The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.
Slip Opinion, at 36.

Finally, with regard to the issue of timing, the Court rejected a “rolling” 5 hour construction, concluding “that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.”  See Slip Opinion, at 37; id., at 50 (“we conclude that Wage Order No. 5 imposes no meal timing requirements beyond those in section 512.”).

Thus, as for meal periods, the Court’s decision appears to essentially track the status quo in terms of an employer’s meal break obligations.

Rest Period Obligations: With regard to rest periods, it is important to highlight that the Court’s analysis regarding the scope of an employer’s duty did not examine the issue of what constituted a legally compliant rest break, but rather, was expressly confined to two limited issues: (1) the amount of rest period time required, and (2) when rest periods must be provided.  See Slip Opinion, at 17-18 (“Preliminary to its assessment of the trial court’s certification of a rest period subclass, the Court of Appeal addressed two threshold legal questions: the amount of rest time that must be authorized, and the timing of any rest periods. We consider these same two questions.”).

[Note: The Court’s refusal to venture beyond these two very limited questions appears to derive from the fact that the Court viewed the Court of Appeal’s foray into these issues in the context of a certification motion to itself be an abuse of discretion.  See Slip Opinion, at 26 (“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.”).  As such, the Court did not resolve the looming question of whether, and to what extent, a rest period must permit employees to be relieved of duty and/or control.  From a logical perspective, one would think that an employee must, at a minimum, be relieved of all duty, not only because that is the very concept of a break, but also because the premise that an employee has received a rest break while continuing to be subjected to duty would render the Wage Order’s rest period requirements completely meaningless.  Indeed, if that were the law, an employee’s entire shift would constitute one continuous rest break.]

With regard the amount of rest period time required, the Court harmonized the three sentences comprising Section 12(A) of the Wage Order to conclude that “[e]mployees 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.”  See Slip Opinion, at 20.

As for when rest periods must be provided, the Court rejected a construction that would impose on employers “a legal duty to permit their employees a rest period before any meal period.” See Slip Opinion, at 22.  As reasoned by the Court, “[n]either text nor logic dictates an order for these, nor does anything in the policies underlying the wage and hour laws compel the conclusion that a rest break at the two-hour mark and a meal break at the four-hour mark of such a shift is lawful, while the reverse, a meal break at the two-hour mark and a rest break at the four-hour mark, is per se illegal.”  See Slip Opinion, at 23.  According to the Court, “[t]he only constraint on timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable’” and thereon, “[e]mployers are thus 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.”  See Slip Opinion, at 22.  Yet, the Court left open the question that an employer may nonetheless violate the Wage Order by failing to make a good faith effort to authorize and permit rest breaks in the middle of each work period, concluding that “[a]t the certification stage, we have no occasion to decide, and express no opinion on, what considerations might be legally sufficient to justify such a departure.”  See id.

Thus, as for rest periods, the Court’s decision appears to leave many important questions unresolved.  As these questions, in the Court’s view, are not necessarily pertinent to the certification question, such issues will live on to debate for the immediate future.

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