Will California Employers Ever Get the Breaks They Deserve?

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Employer Defense Attorney, Clifton Smith, comments on the continuing saga of meal period-rest period litigation in California.

This Court stated that rest periods need only be authorized every four hours and need not be taken in the middle of each work period, where doing so would be impractical. It also construed the statutory language of the California Labor Code to permit employers to offer a meal period anytime within the five hour, work period window.

Employer Defense Attorney, Clifton Smith, comments on the continuing saga of meal period-rest period litigation in California.

In California, an employer's duty to provide meal periods and rest periods to its employees has generated significant litigation as well as legal controversy. Recently, both the Federal Courts and California's Appellate Courts have addressed the issue with dramatically different results. This issue now awaits potential review by the California Supreme Court.

In general, California requires employers to provide at least one thirty minute meal period to all employees who work at least five hours each day, with a ten minute rest period provided in the middle of each four hour work period. California Labor Code § 226.7 requires an employer to pay an extra hour of penalty pay to an employee if the employer fails to provide a meal period or rest period, as mandated by an applicable Order of the Industrial Welfare Commission. "For any employer who fails to provide a meal period or rest period as required in California, the financial exposure can be significant," states attorney Smith.

Incredibly, one California Appellate Court asserted that the term, "provide," means that California employers must ensure that employees are actually relieved of all duties for meal and rest periods. (Cicairos v. Summit Logistics, Inc. (2006) 133 Cal.App.4th 949; 35 Cal.Rptr.3d. 243). "This Court would have an employer accept the onerous responsibility of making certain that each and every employee actually takes the complete rest period or meal period, regardless of the number of employees, or where such employees might be physically located, and despite off-site, work responsibilities (e.g.-transportation-delivery) that might make such oversight impossible. It is an impossible standard for an employer to satisfy. It would encourage employees to game the system for financial rewards," claims attorney Smith.

Federal District Courts, as well as a much publicized ruling by a California Appellate Court in the "Brinker" case, take the opposite position. These courts state that while employers cannot impede, discourage or dissuade employees from taking mandated meal or rest periods, they need only provide the opportunity for these breaks, not actually ensure that these meal periods and rest periods are taken.

In White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080, a Federal District Court, for the Northern District of California, held that an employer must offer meal periods, but is not required to ensure that employees are actually taking these breaks. In Brown v. Federal Express Corp. (C.D. Cal, Feb. 26, 2008) 2008 US District Lexus 17125: WL 906517, another Federal District Court, for the Central District of California, agreed with the Northern District Court's reasoning in White. In the case of Kenny v. Supercuts, Inc. (N.D. Cal. June 2, 2008)) US District Lexus 43070, the District Court, for the Northern District of California, concluded that an employer is not required to schedule breaks, nor ensure that such breaks are taken, nor even ensure that employees take a full meal period. "These Federal District Court judges decided that an employer is only required to provide the opportunity to take such breaks. But then it is the employees' responsibility to ensure that such breaks are taken," observes attorney Smith.

Finally, a California Appellate Court, for the Fourth Appellate District, arrived at the same conclusion. In Brinker Restaurant Corporation, et al v. Superior Court (July 2, 2008) D049331, the Appellate Court concluded that employers cannot impede, discourage or dissuade employees from taking rest periods or meal periods, but they need only provide, not ensure, that such meal periods and rest periods are taken. "The Brinker Court even offered flexibility to employers on the timing of such breaks," noted Mr. Smith. "This Court stated that rest periods need only be authorized every four hours and need not be taken in the middle of each work period, where doing so would be impractical. It also construed the statutory language of the California Labor Code to permit employers to offer a meal period anytime within the five hour, work period window."    "This Appellate Court's ruling in the Brinker case is the polar opposite of the Appellate Court's position in Cicairos. The two positions cannot be reconciled," concludes Attorney Smith.

"The reasoning and decisions of the Appellate Court in Brinker, as well as the decisions of the Federal District Courts, offer a rational interpretation and application of California law, ensuring greater employer compliance with the duty to provide meal periods and rest periods to employees. These decisions shift responsibility for taking breaks to the employees, where such responsibility should be placed," states Attorney Smith. It is possible that the California Supreme Court may grant review of the Court's ruling in Brinker. Absent intervention by the California Supreme Court, the shifting legal standards and the ultimate question of employer liability for failing to "provide" meal periods and rest periods will remain.

CE Smith Law Firm is the small employer's resource in California, educating and empowering its clients to effectively manage their employees, ensuring that its clients remain labor law compliant, and serving as its clients' advocate, to advance and protect their interests.

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