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Bucking The Trend On Break Time: The California Supreme Court Should Reverse Brinker

This opinion piece was first published in the Daily News on November 4, 2008. We reprint it here today with the permission of the author, Aaron T. Knapp:

In recent years, defense lawyers have enjoyed a pro-business trend in California court decisions.  The Court of Appeal’s decision in Brinker Restaurant Corp., et al. v. Superior Court of San Diego, 2008 DJDAR 11267, which many of us have been watching closely, is no exception.

In Brinker, employees of a large international restaurant chain operating more than 175 restaurants in California, claim they were improperly denied meal and rest breaks.  The plaintiffs argue their case is certifiable as a class action under California law.  The Court of Appeal disagreed, vacating a lower court’s order certifying the case as a class action.

On October 22, the California Supreme Court agreed to review the case.

The Court of Appeal’s core legal holding was that break periods need not be “ensured” by the employer but only “made available.” This, despite the fact that an earlier case, Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005), held that California “employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty’” during a break.

According to the Court of Appeal, the statistical proof offered by the plaintiffs showed only that breaks were not taken. While this might have resolved the question of whether the defendants “ensured” the breaks, it did not show that the defendants failed to “make them available.” The Court of Appeal held that too much individualized proof would be needed to litigate the claims on the latter standard, making class certification inappropriate.

The Court of Appeal’s underlying legal holding in Brinker is rife with problems. The California Labor Code indicates that employers must “provid[e]” meal breaks.  The Industrial Welfare Commission similarly mandates rest periods.  Plaintiffs argue that under these provisions, employers should be required to make sure employees take their breaks.  The Court of Appeal rejected this argument, emphasizing how burdensome it would be for the corporate defendants to ensure that employees utilize their break time; and how under this standard, individual employees might game the system to the significant detriment of their employers.

According to the Court of Appeal, therefore, all employers should be required to do is merely permit meal and rest breaks.   This was the court’s fundamental error.

To be sure, “providing” breaks to employees does not mean holding a gun to their heads until they take them.  The requirement cannot be that employers force employees to take breaks.  But, by the same token, requiring employers merely to permit breaks, without any additional teeth, seems far too lenient under the circumstances.

So worried was the Court of Appeal about not imposing any additional administrative burden on employers, and about individual employees “gaming” their bosses, that it failed to recognize how its relaxed standard could be unfairly exploited by California employers.

The Court of Appeal suggested that an employer complies with the statutes so long as employees are not “forced to forego” breaks.  But this ignores the many ways in which organized managers can unfairly treat employees in connection with break time, short of actually “forcing” an employee not to take a break.

An employer can comply by merely granting (or at least not refusing) express requests, if any, to take permissible breaks, but failing otherwise to broach the issue.  Meanwhile, the employer is free to pile substantial work on employees under time requirements and a demeanor that suggest no break should or can be taken.

The Court of Appeal’s holding focuses too narrowly (and too inflexibly) on a pointy-headed dictionary definition, ignoring the practical context in which these rights are exercised, or not. In a busy, time-constrained work environment, there are many natural disincentives to take breaks. Managers and supervisors, even while recognizing break rights, often look askance at them and the employees who dutifully take them.

Employees who work through their breaks, or take shorter breaks, may get more praise and credit than those who don’t. The dynamic is intensified in an uncertain economy and for many immigrant groups who can be exceedingly obedient and timid.

If affirmed, Brinker will substantially “chill” the exercise and enforcement of break rights because employees may not be able to find representation.  Plaintiffs’ lawyers are less likely to pursue individual meal and rest break cases because it will not be worth it to them.

Without lawyers, these important individual rights will not be asserted as much in court. And an unasserted right is, for all intents and purposes, a nonexistent right. Brinker’s procedural holding therefore has immense practical ramifications that I’m not sure the Court of Appeal, in its pro-employer analytical framework, properly took into account.

Taking into account context and good policy, the law can, and should, be read to require employers not only to give meaningful, individualized notice of break rights, but also affirmatively to schedule breaks for all employees.  Breaks should be part of each employee’s schedule, and employers should be required regularly to encourage and remind employees to take them.

Under this more balanced standard, these cases would be about whether breaks were scheduled and regularly encouraged by the employer -- which would be the employer’s burden to prove. Class status would be easier to attain since the cases would not involve lots of individualized proof.  And with class status comes a more level playing field, and therefore a fairer result.

The Supreme Court should buck the pro-business judicial trend and reverse the Court of Appeal in Brinker.

Aaron T. Knapp is a writer, speaker, and sole practitioner in San Francisco with significant experience in employment matters. He is also the founder of The Post Partisan (, a public affairs opinion/blogging/community website.


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