Sunday, February 26, 2012

On the Brink

As California employers (and employment lawyers) await the California Supreme Court's opinion on Brinker Restaurant Corp. et al. v. Superior Court of San Diego, S166350, which involves the duty of employers to provide meal and rest breaks to hourly employees, employers are still in Meal/Rest Period LIMBO. You can see the oral arguments on YouTube. The question we hope to have resolved soon (April 12, 2012) is whether employers have to make sure their employees take their breaks or whether they need only make the break times available. A recent California case, Flores v. Lamps Plus, Inc., held that "[i]t is an employer's obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time." The Court continued that the mandatory language of the California Labor Code §§ 226.7 and 512 and the IWC Wage Orders does not mean employers must ensure employees take meal breaks, but rather, employers must only provide breaks. The Court interpreted the word "provide" in the Labor Code's meal period provision to mean "to supply or make available" and in its rest period provision to mean "authorize or permit." The Court rejected plaintiffs' assertion that employers must ensure employees take meal and rest breaks finding this "utterly impractical" for employers. The Court concluded that Lamps Plus made it clear to its employees it upheld California's meal and rest period laws and went so far as to discipline employees who skipped these required breaks.

This case provides temporary comfort to employers, at least until Brinker is decided similarly, which will allow employers to exhale. In the meantime, I am making my hourly nonexempt employee TIMESHEET for employees available to you. What I have noticed is that most employers have timesheets for these employees, but the timesheets do not have columns to document that rest breaks are taken, only meal periods. In other words, the employee is on the honor system for their 10 minute rest, which they are entitled to every four hours or major fraction thereof. That is, until they file a claim with the California Labor Commissioner for the wages/penalties owed for their missed breaks. Hopefully, you will find this helpful until we get some added clarification from the California Supreme Court.

Proactive Lawsuit Prevention Strategies to Prevent Meal/Rest Period Class Actions:
1) Have clear policies in your Employee Handbook that set forth that employees are required to take their meal periods and rest periods. Providing employees with a sample time table of when the meal and rest periods should occur in a typical shift is always helpful.
2) Have timesheets for your nonexempt hourly employees who do not punch time clocks. The timesheets should include a column for rest breaks as well as meal periods.
3) Train your managers to make sure that employees are actually taking their breaks and filling out their timesheets accurately each day.
4) Make sure supervisors know that a meal period is TIME AWAY from work and that they should not call or text employees during that time.

What is your opinion of Brinker? Are employers on the brink of salvation or disaster?