Metropolitan News-Enterprise


Wednesday, July 23, 2008


Page 1


Employers Must Give Breaks, Not Ensure They Are Taken—C.A.


By STEVEN M. ELLIS, Staff Writer


Employers must provide their employees with rest and meal breaks under state law, but they do not have a duty to ensure that employees take them, the Fourth District Court of Appeal ruled yesterday.

Holding that San Diego Superior Court Judge Patricia A. Y. Cowett failed to properly consider the elements of hourly restaurant employees’ claims that their employer’s policies on rest and meal periods violated state law, and that Cowett, as a result, could not determine whether common issues predominated over issues affecting individual members, Div. One vacated her order certifying the employees’ suit as a class action.

The Court of Appeal, in an opinion by Justice Gilbert Nares, further held that state law does not require employers to give employees rest periods in the middle of shifts if impracticable or to provide a meal period immediately once five hours of work have elapsed, and that employers cannot be held liable for employees working off the clock unless the employer knew or should have know the employee was doing so.

Employees of the Brinker Restaurant Corporation—which operates 137 restaurants in California, including Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy locations—brought suit against the company alleging that it failed to provide them with rest periods for every four hours worked, or major fraction thereof, as required by state law.

The employees also claimed that Brinker violated state law requiring meal periods for employees who work more than five hours, and argued that the employer illegally required employees to work off the clock during meal periods.

Class Certification

In 2006, the employees sought class certification and submitted evidence that the company used a centralized computer system that could generate reports showing class-wide meal and rest break violations.

Cowett, finding that “common questions regarding the meal and rest period breaks are sufficiently pervasive to permit adjudication,” granted the request, creating a class of more than 59,000 employees.

However, on Brinker’s petition for a writ of mandate directing the trial court to vacate its order and enter another denying certification. Nares wrote that Cowett could not have reached an informed decision whether individual or common issues predominated because she failed to determine the applicable law as to the plaintiffs’ claims.

“[H]ad the court correctly decided the elements of plaintiffs’ rest, meal break and off-the-clock claims, it could have only concluded liability could only be established by making individual inquiry into each plaintiff’s claims, and they thus are not amenable to class treatment,” he said.

Nares first opined that while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide rest periods, and are not required to ensure that employees take them.

He further concluded that employers need only authorize and permit the periods every four hours or major fraction thereof, but that the periods do not have to be in the middle of each work period if impracticable.

Similar Conclusion

The jurist arrived at a similar conclusion with respect to ensuring that employees take meal breaks, rejecting the plaintiffs’ contention that Brinker was required to provide them with a second meal period once five hours had elapsed from the first, and that the initial meal period had to occur in the middle of their shift.

Nares also opined that, 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 the employees were doing so.

Reviewing Cowett’s order in light of his conclusion that rest and meal breaks needed only to be “made available” and not “ensured,” Nares wrote that employees’ claims were not amenable to class treatment because of the individualized inquiry that would be necessary into each plaintiff’s claim, especially given the lack of evidence that the company had a class-wide practice regarding meal breaks.

He also concluded that the off-the-clock claims were not amenable to class treatment because individual issues predominated on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.

Justices Judith L. Haller and Terry B. O’Rourke joined Nares in his opinion.

The case is Brinker Restaurant Corporation v. Superior Court (Hohnbaum), 08 S.O.S. 4356.


Copyright 2008, Metropolitan News Company