Wednesday, August 6, 2008, 9:31 AM

Come and Get It! Meal Breaks and Rest Breaks: Employee Responsibility to Take Not Employer Responsibility to Ensure under New California Decisions.

Posted by Kim Licata
In late July, the California Court of Appeals issued an important ruling (unless overturned by the California Supreme Court) on meal and rest breaks in Brinker Restaurant Corporation v. Superior Court of San Diego County (Hohnbaum). In Brinker, the court denied the plaintiffs' motion for certification because meal and rest breaks were not "ensured", but rather needed to be "made available" to employees, which raised too many individualized issues for collective action. Not only does the Brinker decision appear to make certification of meal or rest break issues unlikely, but the decision also provides employers with some relatively lax guidelines for such breaks in that employers must authorize and permit such breaks (and therefore, not impede or prevent their being taken), but not ensure employees do take them. Finally, Brinker would not appear to allow a claim for employees working off the clock unless the employer knew (or should have known) of the off-the-clock work and encouraged or coerced such off-the-clock work. All of these implications from the Brinker decision may provide employers in California with some measure of relief, although they must keep in mind while collective actions may not be likely, individualized lawsuits can be brought (and can be successful against employers) for these same issues.

Wells Fargo employees suing for wage and hour violations, including alleged missed meal breaks and unpaid overtime, lost their effort for certification this week when a California court of appeals denied their motion in Gabriella v. Wells Fargo Financial, Inc., 06-cv-04347. The court ruled that the employees could not prove that class wide policies resulted in the missed breaks, largely relying on the Brinker decision.

Employers shouldn't expect guidance from the California Supreme Court any time soon if recent denials of certification are any indication. Just this month, the California Supreme Court denied Dollar Financial Group, Inc.'s petition to review a case involving issues of meal and rest breaks in the case Bufil v. Dollar Financial Group, Inc., case number A118143, in the First Appellate District, Division 4.

For more on the decision in Gabriella v. Wells Fargo Financial, Inc., click here.

The recent Brinker decision can be read by clicking here.

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