Consequences of the Brinker Decision

Last month, a California appellate court made a significant (although sure to be appealed) ruling regarding rest and meal breaks.

For years, the California DLSE and courts have interpreted the term “provide” to mean employers must require employees to take their mandatory meal periods or be liable to the employee for one extra hour of pay.

The court determined:

The appellate court’s ruling included the following major points:

  1. Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.

  2. Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.

  3. Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.

  4. Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.

  5. Liability For Known Off-Clock Work. 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 they were doing so.

  6. Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.

The Department of Labor Standards of Enforcement has issued the following memo that explains their position on this ruling. Read it here.

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