The California Supreme Court is expected to render a decision in the Brinker v. Superior Court case later this year that will answer critical legal questions about the meal and rest break rights of hourly workers in California.  At issue in the case is when and under what circumstances workers are entitled under California law to rest and meal breaks.

Though the case was originally filed as a class action, and the appeal involved the trial court’s order granting class certification to a group of 5,500 restaurant workers, the Supreme Court’s decision will necessarily address questions that will have an impact on individual meal and rest break cases as well.  Commentators from across the political spectrum agree Brinker is one of the most important labor cases pending before the California Supreme Court today.

The case is important to workers because the Court of Appeal’s decision severely limited the rights of workers to obtain damages for missed meal and rest breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

These conclusions, if adopted as state law by the Supreme Court, would effectively deny workers the right to use class actions to recover wages for missed meal and rest breaks in California.  Further, the adoption of these conclusions by California’s highest court would make it harder than ever before for individual workers to obtain relief for missed meal and rest breaks.

The restaurant workers have asked the Supreme Court to decide a number of key issues of law:

•    Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?
•    Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?
•    When and how frequently must an employer provide meal and rest breaks to its employees?
•    In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

The answers to these questions are of great interest to labor groups and business advocates alike, and battle lines were quickly drawn. A mere three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner, under Republican Governor Arnold Schwarzenegger, issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out in the Brinker appellate decision.

The Labor Commissioner virtually ignored other California appellate decisions more favorable to workers’ rights, and instead relied on federal court decisions interpreting California’s meal and rest break laws.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 94, for example, California’s Third District Court of Appeal had decided that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”

The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

Almost immediately after the Labor Commissioner issued its binding memorandum, the California Labor Federation responded with biting criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum, replacing it with one that still plainly sides with the Court of Appeal’s restrictive reading of workers’ meal and rest break rights.  The Schwarzenegger administration is clearly hopeful the Supreme Court will uphold the severe restrictions set out by the appellate court.

A decision in Brinker will have an immediate impact on pending lawsuits, particularly meal and rest break class actions.  Whether the Supreme Court ultimately backs the employer-friendly logic of the decision under review or adopts the worker protections set out in Cicairos, attorneys representing both employees and employers undoubtedly will have clearer guidance on the law.

Finally, many employee rights advocates are certain, or at least very hopeful, that the California Supreme Court’s decision will not result in a substantial impairment of an individual employee’s right to meal and rest breaks.  The larger and more immediate concern is that Brinker could seriously impair the ability of workers to sue their employer collectively for failing to provide appropriate meal and rest breaks.  If the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process to vindicate these important wage and hour rights.

About the Author: Patrick R. Kitchinis the founder of Kitchin Legal APC, a San Francisco, California employment law firm.   He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999.  According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.