Labor & Employment Law Blog

The good news was short lived, however. Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker. As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.  

After the California Supreme Court granted review of Brinker, the Court of Appeal issued four additional Court of Appeal Decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them. See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., and Hernandez v. Chipotle Mexican Grill. However, the California Supreme Court promptly granted review of each of those four decisions, too, and, like Brinker, those four decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them. 

The Brinker decision has been fully briefed for well over a year, since July 20, 2009, but the Supreme Court still has not scheduled the case for oral argument. As a result, it remains uncertain whether the law requires an employer to make required meal periods available or requires an employer to ensure employees take all required meal periods. No one can be certain how the Supreme Court will decide this issue until the court conducts oral argument and issues its decision.

Meal period violations can be a source of very substantial liability for employers. When an employer is found to have failed to "provide" a required meal period, Labor Code section 226.7 requires the employer to pay the employee one additional hour of compensation at the employee's regular rate of pay for each workday the employer failed to "provide" a required meal period. In addition, the employer will generally be liable also for the plaintiff(s) "reasonable" attorney's fees and costs, and, possibly, for additional penalties. Many if not most meal period cases are brought as class actions.

In the class action context, the numbers can add up quickly. For example, assume a class size of 500 current and former employees (many classes are much larger). Assume, also, there is a finding the employer failed to "provide" required meal periods approximately half the time because the employer did not "provide" the meal periods within the first five hours of the employees' shift, because the meal period was not completely duty free, or because the meal periods were not uninterrupted for at least 30 minutes each day. Assume, also, that the violations go back four years.  Finally, assume an average hourly wage of $20.00. In that scenario, the liability just for the Labor Code section 226.7 additional hour of compensation would be approximately $5 Million.

If anything, the legal climate in California has grown more challenging for employers during the last five years as appellate decisions have generally not been favorable for employers, and we think this situation is not likely to improve in the foreseeable future. Fortunately, there are steps an employer can take to reduce the likelihood of being sued to begin with and to help defend against meal period claims if the employer is sued. One of the most important steps an employer can take is to have a written meal period policy and to require employees to acknowledge their receipt of that policy and their understanding of that policy. Some other important steps employers can take are to require employees to document is that they took all required meal periods and to promptly notify the employer in writing if the employee did not take for any reason a required meal period.  Further, employers should consider disciplining employees who fail to follow such policies.