Employers waiting for the California Supreme Court to clarify California’s meal and rest break rules in the case of Brinker Restaurant Corp. v. Superior Court, No. S166350 may have to wait a little longer. The case is expected to resolve the contentious question of whether California employers must ensure that employees take thirty-minute off-duty meal breaks or just make them available to employees. Oral argument was held November 8, 2011. Under the Supreme Court’s rules, a decision was expected by mid-February, 2012, 90 days after the argument. On December 2, 2011, however, the Supreme Court agreed to accept additional briefing addressing whether a ruling on the so-called “rolling 5” issue will apply retroactively or only to future violations. As a result of this additional briefing, it is possible, although uncertain at this time, that the Supreme Court could issue a decision as late as April, 2012, 90 days following the completion of this additional briefing.
The “rolling 5” issue addresses the time meal breaks must be provided during a workday. California law generally requires that employers provide employees a 30-minute off-duty meal break whenever they work five hours or more, and another 30-minute meal break where work shifts exceed 10 hours. The “rolling 5” issue in Brinker is whether employees are entitled to one break during work shifts up to 10 hours long and a second break for shifts over 10 hours (the defendant’s position), or whether employees cannot work for more than five hours without a break (the “rolling 5” position advocated by the plaintiffs). The Brinker plaintiffs contend that an employer must schedule meal breaks near the middle of shifts to avoid work periods in excess of five hours or pay the hour premium if an employee works more than 5 hours without a break.
The Brinker plaintiffs’ position on the “rolling 5” issue would have a potentially significant impact on transportation providers operating in California. Under the “rolling 5” theory, if a driver takes a meal break early in the shift, the driver would be entitled to another one five hours later and could conceivably be entitled to three in a 12-hour shift. Incorporating these breaks into a driver’s day would be problematic and would, in our view, adversely impact the carrier’s operations and potentially conflict with the federal Hours of Service Rules and the Federal Aviation Administration Authorization Act (the “FAAAA”). Indeed, as many of the Firm’s clients know, a federal district court in California recently ruled that California’s meal and rest break rules are preempted by the FAAAA as applied to motor carriers. See http://transportationblog.scopelitis.com/blog/transportation-blog/federal-district-court-finds-faaaa-preempts-california-meal-and-rest-break-rules.
We are following the Brinker case closely and will keep you apprised of developments. In the meantime, while a ruling in Brinker could be delayed by this additional briefing, employers operating in California should not wait to adopt written policies advising employees of their meal and rest break rights under California law. Employers should also post a copy of the applicable California Industrial Welfare Commission Wage Order (for transportation providers, IWC Wage Order No. 9) in the same place they post other standard employment notices. Copies of Wage Order No. 9 and other wage orders can be obtained from the Firm. Questions regarding Brinker or California’s meal and rest break rules in general should be directed to Jim Hanson.