Wage Law

We know of at least five large class actions which have been certified, for all purposes, on rest period violations: Main Street Restaurant Group (TGI Friday's); Brinker (Chili's, Romano's Macaroni Grill, On The Border Mexican Grill & Cantina), Albertson's (hourly store managers), Smart & Final, and UPS.

Smart & Final settled. UPS settled. A writ petition in Main Street Restaurant Group was denied. A writ petition in the Albertson's case was denied, and review was denied. However, Brinker Restaurant Corporation v. Superior Court is on appeal and was set for oral argument today in San Diego (Brinker Restaurant Corporation v. Superior Court (Hohnbaum). A significant issue in that appeal is whether the use of the word "provide" in Labor Code § 512 means "make available or "ensure," or whether it means something more akin to "authorize and permit" as is required for rest periods.

Labor Code § 512 states in part:

An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

Brinker reads this statute to imply that any meal period is waivable. The applicable wage orders also specify the conditions under which meal periods can be waived:

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and employee. In the case of employees covered by a valid collective bargaining agreement, the parties to the collective bargaining agreement may agree to a meal period that commences after no more than six (6) hours of work.

(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

The certification order states that the issue of whether an employer must force an employee to take meal periods is itself a predominating common question. If we've heard correctly, Brinker seems to be arguing that "provide" simply means "not prevent," such that meal periods can be waived at any time; and therefore determination of each employee's waiver or lack thereof in each shift requires an individual analysis making the case unsuitable for class certification. However, under the classic canon of statutory construction "expressio unius est exclusio alterius" (Latin for "the mention of one thing may exclude others"), the specification of when a waiver is and is not valid generally precludes any reasonable interpretation that provides that an employee can waive the meal period except as provided in the wage orders. Thus, an individualized inquiry into waiver is not needed, particularly when the shifts exceed six hours.

In prior cases addressing the same issue, courts have found that the term “mutual consent of both the employer and employee” is significant. By using the term “mutual consent”, the Legislature clearly indicated that there must be a meeting of the minds prior to waiver occurring. Otherwise, the Legislature would have eliminated “mutual” from section 512. In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, the Court of Appeal held that "employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty.’ (Dept. of Industrial Relations, DLSE, Opinion Letter 2002.01.28, p. 1.). See also Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F.3d 1071 (no waiver via CBA) Employers also have a duty, under wage order No. 9, to record their employees' meal periods." Id. at 963. Thus, unless the 4th District disagrees with the analysis in Cicairos, the certification should withstand appellate scrutiny. The Supreme Court denied review in Cicairos. Should Brinker prevail, Supreme Court review would be necessary to review the resulting conflict between the 3rd and 4th Districts.

Justices Nares, Haller, and O'Rourke were scheduled to hear the matter, but the court vacated the oral argument, sua sponte, and will reschedule it in due course. No reason was given, but it might have something to do with Murphy. We think there is some good language in Murphy disposes of Brinker's best arguments. Perhaps the 4th District will invite further post-Murphy letter briefing.