July 21, 2008 California Appellate Court Issues Favorable Decision Regarding Meal and Rest Period Rules


Today, the California Court of Appeal in San Diego issued an important decision in the case of Brinker Restaurant Corporation v. Superior Court (Hohnbaum).  This published decision is likely to have a major impact on meal and rest period claims in California.

In short, the Brinker court held that employers do not need to affirmatively ensure that employees actually take their meal and rest breaks.  Rather, California employers need only make meal and rest breaks "available" to employees.

In addition, the court held that rest breaks in California need not, where impracticable, be in the middle of each four hour work period.  Rather, employers have some discretion regarding rest breaks if necessitated by the nature of the work or the circumstances of a particular employee.

Finally, the court determined that employers are not required to provide a meal period for every five consecutive hours worked (sometimes called the "rolling five-hour" theory).  Instead, employers need only make a timely 30-minute meal period available to employees who will work over five hours in a given workday. 


The plaintiffs alleged that Brinker Restaurant Corporation had violated California law at 137 California restaurants by failing to ensure that its employees actually took their meal and rest breaks.  The plaintiffs also claimed that Brinker's policy of providing 30-minute meal periods near the beginning of the employees' work day, known as "early lunching," violated California's requirement that employers provide a meal period to employees for every five consecutive hours worked.

Brinker argued that employers are not required to affirmatively ensure that employees take meal and rest breaks, but rather that California law is satisfied when employers make meal and rest breaks "available" to their employees.  Brinker also argued that its policy of providing early meal periods complied with their obligation to provide meal periods to employees who work more than five hours per day.

The court agreed with Brinker and followed the reasoning applied by recent federal district court decisions in California.  The court relied primarily on the plain language of the California Labor Code and the Industrial Welfare Commission Wage Orders, stating that these laws do not require employers to ensure that employees actually take the meal and rest breaks made available to them.  The court also noted that the plaintiffs' position was impracticable and unsupported by public policy.  The court went on to note that employers would face an "impossible task" if they were required to "police their employees and force them" to take breaks.

Employees bringing meal and rest break class actions in California have long relied on another court of appeal decision (Cicairos v. Summit Logistics) for the proposition that employers must ensure that employees take full, uninterrupted meal periods.  However, the Brinker court directly addressed that argument, finding that Cicairos rested on unique facts applicable only to that case, and did not generally require that employers ensure that their employees take meal periods.

Based on the Brinker court's view of employers' meal and rest period obligations, it overturned the trial court's decision to certify the proposed class of 59,000 employees.  The court concluded that this case was not appropriate for treatment as a class action because individual issues regarding why each employee missed a meal or rest period would predominate over common issues.    

What This Means

In recent years, California employers have been plagued by meal and rest period class actions, with the attendant large exposure and significant attorneys' fees.  Today's decision is a significant step toward reducing the exposure of such claims.

The Brinker decision clarifies the appropriate burden on employers by establishing that they need not affirmatively ensure that employees take their full meal and rest breaks.  Accordingly, so long as an employer makes meal and rest breaks "available" to its employees, and can prove that it has done so, the employer is not liable when an employee voluntarily chooses to forgo (or shorten) a meal or rest period. 

Importantly, however, this decision may not be the end of this issue, as the California Supreme Court may well review the decision.  If that occurs, we will not have a final resolution of this issue for a couple more years.  Thus, it is prudent for employers to continue to be vigilant in requiring employees to take their full meal periods until this issue is finally resolved.

Additionally, even if the new Brinker rule becomes the final word, employers will need to plan how they are going to prove that meal and rest periods were made available to their employees.  Depending on the industry, this can be accomplished in a variety of ways.

In any event, this is good news for employers, as well as for employees who want more choice and flexibility in their work schedules.

This decision, as well as the strategic options it presents, will be addressed at Paul, Plevin's upcoming breakfast briefing  "Avoiding Wage & Hour Time Bombs" on September 25, 2008.  Information about all Paul, Plevin's upcoming briefings and seminars is provided below.

For more information about this E-Update, please contact Michael Sullivan, J. Rod Betts, Jeff Ames and Tim Keegan, or any other Paul Plevin attorney at (619) 237-5200.

Upcoming Paul, Plevin Seminars:

August 28, 2008

Breakfast Briefing: Layoffs Without Lawsuitspresented by Fred Plevin and Denise Brucker

This training, which is geared toward human resources personnel, decision makers, and in-house legal counsel, provides a detailed road map for conducting a workforce reduction in a way that reduces a company's exposure to discrimination, wrongful termination, severance, and other liabilities.

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September 25, 2008

Breakfast Briefing: Avoiding Wage and Hour Time Bombspresented by Michael Sullivan and Aaron Buckley

Understanding and applying wage and hour laws in California is a daunting task. This training focuses on the most common - and expensive - errors employers tend to make, and offers solutions for limiting exposure on existing claims and avoiding future violations.

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Thursday, October 30, 2008

Paul, Plevin's 11th annual employment law update Workplace Law 2009

As always, our goal is to provide employers with the practical knowledge and tools necessary to prepare for and address the employment law challenges of the coming year in an entertaining and thought-provoking program.

Register on-line | Download Brochure .pdf