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Brinker and Meal Periods Many have probably seen articles expressing various opinions on the California Court of Appeals recent decision in Brinker Restaurant Corporation, et al. v. Superior Court, (Hohnbaum) et al., No. D049331 (Cal. Ct. App. July 22, 2008), which addresses the issue of meal and rest periods for hourly employees. Here’s our take. The ruling appears to be a favorable one for employers. It essentially confirms that, in California, employers may satisfy the legal requirements for “providing” meal and rest periods by making them available to employees, and need not ensure that they are taken. Brinker Restaurant Corporation operates restaurants in California, including such well-known names as Chili’s Grill & Bar and Romano’s Macaroni Grill. In 2002, the California Division of Labor Standards Enforcements (DLSE) investigated Brinker’s alleged failure to provide meal and rest breaks as required by law. Brinker settled the DLSE complaint before any findings could be made. Even so, their employees filed a class action complaint alleging rest and meal break violations, among other matters. The plaintiffs alleged that Brinker violated Labor Code section 226.7 by violating IWC Wage Order 5-2001, which sets forth that an employer must give an hourly employee a paid rest period of ten minutes “per four (4) hours or major fraction thereof” worked. The court held that the breaks, whether rest or meal, need only be made available and not ensured. The Brinker decision appears to be a major victory for employers. The decision affirms the current weight of authority that California employers are required to provide, i.e., making meal and rest breaks available to employees, while not needing to ensure that employees take these breaks. This includes the related issue before the Court that these types of actions are not amenable to class treatment. In the aftermath of Brinker, the California Labor Commissioner issued a memorandum to all Division of Labor Standards Enforcement staff regarding the decision, instructing that the decision must be followed effective immediately, including the holding that employers must provide meal and rest breaks, but need not ensure that they are taken.
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