WAGE HOUR ALERT: CALIFORNIA SUPREME COURT TO REVIEW CONTROVERSIAL MEAL AND REST PERIOD RULING
Background. In the July 25 issue of Compliance Matters, we reported on a new California Court of Appeal decision which was very favorable to employers. In the Brinker Restaurant case, the court of appeal ruled that California employers "need only provide" meal periods and "not ensure they are taken." The Brinker court also held that the California Wage Orders do not dictate when
meal periods are to be taken during the course of a shift. Thus,
the court ruled that "employers are not required to provide a meal
period for every five consecutive hours worked." Employee
advocates had argued for a much tougher standard which would have
required employers to guarantee that employees actually take each and
every meal period, that the meal be taken during the middle of the
shift (such as after the third and before the fifth hour of an eight
hour shift), and that a meal break had to be offered for every five
hours worked.
The
court of appeal also ruled that these types of cases ordinarily will
not be amenable to class action treatment and that employers will be
liable for "off-the-clock" work only if it could be proven that the
employer "knew or should have known" that such work is going on.
What's New? On Wednesday of this week, the California Supreme Court agreed to review the court of appeal decision. By taking the case, employers can no longer rely upon the Brinker court of appeal decision. The Supreme Court could easily take a year or more before it renders a decision.
In the meantime, employee advocates will be pressing meal period class action claims. The fact that the Brinker
case is temporarily off the books clears the way for employee
claims. In addition, employers who are presently in litigation
likely will see the plaintiffs' counsel stiffening in their resolve
since the advantageous Brinker court of appeal decision cannot be relied upon.
What does this mean to you? Employer advocates are hoping that the Supreme Court took the Brinker
case appeal to approve the pro-employer flexibile guidelines
established by the lower court. Employee advocates have sought to
overturn the Brinker ruling because the case made it much
harder for employees to sue employers for meal period violations.
Since it will be a considerable period of time before the court renders
its ruling, employers must be vigilant in complying with the state's
meal and rest period requirements.
For those employers that have not already done so, at a minimum we are recommending that employers do the following:
? Create and disseminate a lawful meal and rest period policy.
? Train
managers on the meaning of the policy and the circumstances under which
the state mandated meal and rest period penalty compensation must be
paid.
? Ensure that start and stop times for all meal periods are recorded.
? Develop a program to systematically review compliance with the policy.
? Consider
having employees sign a written acknowledgement that they understand
the requirements of the company policy and post the policy near
employee time clocks and where other such postings are made.
? Consider obtaining written meal period waiver agreements where such agreements are permitted.
? If
you are using a so-called "on duty meal period" agreement, be sure to
have the agreement reviewed by counsel to insure compliance with the
state's strict guidelines.
Unfortunately,
it will be quite some time before we get clarity in this complex area
of wage hour compliance. In the interim, employers will have to
decide how to comply with the law. Should the company
adhere to a conservative view of the meal period requirements, as most
lawyers advocated before the favorable Brinker ruling? Or, should the company adopt a policy along the lines of the more flexible Brinker ruling?
These
decisions will turn on the company's belief about how the Supreme
Court ultimately will rule. We recommend that you consult
with your contact at the Firm in making this important and potentially
costly risk management decision.
For more information, call us today at (818) 508-3700,
or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
