48 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com Finally, in 2012, the Supreme Court issued its decision in Brinker.244 The opinion was mostly favorable to employers, holding—as expected—that employees need not be forcibly prevented from working through their lunch breaks in order to be properly “provided” with a meal period. Brinker stated that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.”245 “Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.”246 Furthermore, if an employee who is properly relieved of all duty decides to continue working anyway, the employer will not be liable for payment of one hour of penalty pay, and will be liable to pay straight-time pay only if it “knew or reasonably should have known that the worker was working through the authorized meal period.”247 Brinker did find, however, that employers must provide meal periods “after no more than five hours of work, and a second meal period after no more than 10 hours of work.”248 This would mean that, for example, an employee who starts work at 9 a.m. would need to be provided a lunch break beginning by no later than 2 p.m., or else the employer would be liable for one hour of premium wages. But it would also seem that the employee could voluntarily decide to take meal breaks later on in the work day, as long as they were made available in a timely manner. Brinker rejected the plaintiffs’ contention that a meal break must be provided during every “rolling” five-hour block of work time, and thus held that employers can provide meal breaks quite early in the work day.249 Following Brinker, the Supreme Court remanded to the Court of Appeal three other meal break class actions for which it had granted review pending issuance of a ruling in Brinker: Flores v. Lamps Plus,250 Tien v. Tenet Healthcare,251 and Hernandez v. Chipotle Mexican Grill.252 Employers rejoiced when the Court of Appeal quickly issued opinions in each of these cases affirming denial of certification, citing Brinker.253 This jubilation was short- 244 Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012). 245 Id. at 1034. The Court of Appeal in Brinkley v. Public Storage, Inc. reached the same conclusion in an unpublished decision issued after Brinker. 2012 WL 3126606, at *5 (Aug. 2, 2012) (“[A]n employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”). The Brinkley court also held that an employer need not ensure that an employee take rest periods. Id. at *6 (“California law does not require an employer to ensure that employees take rest periods.”). 246 Brinker, 53 Cal. 4th at 1038-39 (citing Morillion v. Royal Packing Co., 22 Cal. 4th 575, 584-585 (2000)). 247 Id. at 1039-40 n.19 (quoting DLSE Opinion Letter No. 1991.06.03). 248 Id. at 1049. 249 Id. at 1048. 250 Lamps Plus Overtime Cases, 125 Cal. Rptr. 3d 590 (Ct. App.), review granted and opinion superseded sub nom. In re Lamps Plus Overtime Cases, 278 P.3d 259 (Cal. 2011). 251 Tien v. Tenet Healthcare Corp., 121 Cal. Rptr. 3d 773 (Ct. App.), review granted and opinion superseded, 251 P.3d 941 (Cal. 2011). 252 Hernandez v. Chipotle Mexican Grill, Inc., 118 Cal. Rptr. 3d 110 (Ct. App. 2010), as modified on denial of reh'g (Oct. 28, 2010), review granted and opinion superseded, 246 P.3d 612 (Cal. 2011). 253 Tien, 121 Cal. Rptr. 3d at 776; Lamps Plus, 125 Cal. Rptr. 3d at 610; Hernandez, 118 Cal. Rptr. 3d at 123.
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