BRINKER DECISION PLACES CLASS ACTIONS FOR
MEAL AND REST BREAK VIOLATIONS IN DOUBT

Employers in California have faced an increasing number of wage and hour class actions filed on behalf of their employees.  In 2004 class action treatment of such employee actions was assisted by the California Supreme Court’s 2004 decision in Sav-On Drugstores v. Superior Court.  The high court held in that case that trial court determinations on class certification would not, under ordinary circumstances, be disturbed and approved a sizable wage and hour class action.

The California Supreme Court weighed in again on such issues last year in Murphy v. Kenneth Cole Productions finding that the one hour of pay mandated by the wage orders in California for each missed meal break or rest break constituted wages and not a penalty.  The ruling had the practical effect of extending the statute of limitations for such class actions to a minimum of three years, instead of the one year which would apply if such payments constituted a penalty.

This year the current wave of meal and rest break class actions was dealt a blow by the appellate court decision in Brinker Restaurant Corp. v. Superior Court.  Brinker operates 137 restaurants in California, including the Chili’s Grill and Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy chains.  Its employees contend that the company does not provide the meal and rest breaks as required by the applicable Industrial Wage Commission Wage Orders. 

The wage orders provide that a meal period of at least one half-hour must be provided for every five consecutive hours worked.  In addition, rest periods of ten minutes must be made available to employees for every four hours or major fraction thereof of work.  The wage orders appear to mandate meal breaks, but require only that the employer permit rest periods. 

The Brinker court held that, as to rest breaks, the employer need only provide, not ensure, that the rest periods are taken.  In a break with a previous California appellate court decision in another district (Cicairos v. Summit Logistics, Inc.), the Brinker court held that employers are not required to ensure that employees take a meal period for every five consecutive hours worked but need only provide the opportunity that an employee take such a meal break.  Cicairos had held that employers had a legal obligation to provide meal periods and must pay an hour of wages for each missed meal break.   Thus, if Brinker is the law, class actions would not be possible for missed rest periods or meal breaks as the determination of whether the missed break was voluntary on the part of the employee would present individual issues that would preclude class treatment.

It is unlikely that the story in Brinker has concluded.  After a similar previous ruling by the Brinker court, the California Supreme Court took the case, but later determined to send it back to the Court of Appeal for its determination.  That return resulted in a July 22, 2008, opinion on transfer from the Supreme Court.  A petition for hearing with the Supreme Court has now been filed and will be accepted or rejected by the high court sometime this fall.

In light of the Supreme Court’s previous interest in class action issues and meal and rest break issues, it appears likely that the California Supreme Court will take the case.  Also, the fact that conflicting appellate court decisions exist would make a Supreme Court hearing more likely.

There is a great deal of interest by employers, their counsel, and plaintiffs’ class counsel in this state as to what the court’s final determination will be.

                                                            André E. Jardini

Mr. Jardini is a Director of the firm and practices in the firm’s litigation department.  Email:  aej@kpclegal.com.

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