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Employment Law Alert – California Court Cuts Employers a “Break”

July 25, 2017 | Christine H. Long
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PLEASE NOTE: On August 29, 2008, the California Supreme Court granted a hearing to review the Fourth District Court of Appeal’s decision in the Brinker Restaurant Corporation v. Superior Court of San Diego (Hohnbaum) case discussed in the July 25, 2008 Employment Alert below.  Therefore, the Brinker decision may not be relied upon as legal authority and employers should not rely on this case as an accurate statement of the law.  This case will be worth watching as employers’ look for guidance with regard to their obligations under California’s meal and rest break statutes.


On July 22, 2008, the Fourth District Court of Appeal published its decision in Brinker Restaurant Corporation v. Superior Court of San Diego (Hohnbaum).  The court reached several conclusions favorable to employers, particularly those in the restaurant and hotel industries, on the issue of meal periods and rest breaks.  The court held that employers have some flexibility in scheduling meal periods and rest breaks, and that while employers must provide meal periods, they are not necessarily liable if the employees do not actually take them.  For reasons that are particularly beneficial to employers of multiple work-site establishments, the court denied class certification.

Brinker operates 137 restaurants in California, including Chili’s Grill and Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy.  In 2006, Brinker was sued by a purported class of employees for failing to provide meal periods and rest breaks under California Labor Code section 227.6.

The contentions of the parties in this case focused on key issues in California’s meal and rest break law. Plaintiffs claimed that Brinker used an improper system of “early lunching” – requiring employees to take their first meal period shortly after their shifts began, then requiring employees to work an additional five to nine hours without a second meal break.  Plaintiffs also claimed they were required to work while off the clock during meal periods, and that Brinker management “shaved” or altered employee time cards.  Plaintiffs further argued that employers have an affirmative duty to ensure that employees receive meal periods, and that Brinker could not meet this obligation simply by making meal periods available.  Brinker argued that if an employee worked more than five hours but less than ten, Brinker was only required to give that employee one meal period at some time during the shift, and that Brinker was not required to give employees one meal period every five hours, as Plaintiffs were suggesting.

Scheduling Meal Periods

Labor Code section 512(a) plainly provides that a California employer has a duty to make a first 30-minute meal period available to an hourly employee who is permitted to work more than 5 hours per day unless, (1) the total work period per day is 6 hours or less and (2) both the employer and the employee agree by mutual consent that the employee waives the meal period.  Section 512(a) also states that an employer must make a second 30-minute meal period available to an hourly employee who worked more than 10 hours per day, unless (1) the total hours worked per day is 12 or less, and (2) the first meal period was not waived.

Plaintiffs contended that, where hourly employees take their first meal period approximately one hour into their shift, they are entitled to a second meal period five hours after they returned to work from the first meal period.  The court disagreed, and found that employees are entitled to a first meal period for every work period of more than five hours per day, not a meal period for every five hours worked.  Further, the wage order contains no restriction on the timing of meal periods, so Brinker was not violating the law by requiring “early lunching” by some of its employees.

Rest Periods

Following IWC Wage Order 5-2001, which applies to the public housekeeping industry, and the applicable Regulation 11050(12)(A), the court found that the plain language of the wage order, which requires an employer to permit a 10-minute rest period “per four hours of time worked or major fraction thereof,” does not mean that a rest period must be given every 3.5 hours.  Plaintiffs asserted that a rest break was required when employees work any time over the midpoint of each 4-hour block of time.  The Brinker court rejected this interpretation.  The appropriate number of breaks is based on total hours worked daily.  It is only when an employee is scheduled for a shift longer than 3.5 hours, but less than 4 hours, that he or she is entitled to take a rest break before the 4-hour mark.

The Brinker court also found that Regulation 11050(12)(A) does not require employers to authorize and permit a first rest break before the first scheduled meal period.  The regulation is silent as to the timing of the first rest break vis-à-vis the first scheduled meal period.  The regulation only states that rest breaks, “in so far as is practicable, shall be in the middle of each work period.”  The court noted that the language of the regulation is clearly intended to afford the employer some discretion not to have rest periods in the middle of a work period if, because of the nature of the work or the circumstances of a particular employee – such as a restaurant server whose busiest time is likely at mid-shift – it is not “practicable.”

Contrast to Prior Law

Brinker differs from prior cases involving meal periods and rest breaks.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, the court found that an employer’s obligation to provide meal breaks was only satisfied if employers ensured that workers are actually relieved of all duties during those times.  The obligation was not satisfied by an employer’s assumption that employees took their meal periods.  However, in Cicairos the employees were truck drivers, and the employers had computerized systems tracking each driver’s speed, starts and stops, and time spent driving.  In short, the employer knew that the drivers were driving while eating, and did not take steps to address the situation.  The Brinker court noted that employers cannot police thousands of employees working multiple shifts and force them to take meal breaks.  An employer’s obligation is to make a meal period available to its employees, and not to dissuade, deter, or discourage the employees from taking their meal periods, but not to ensure that employees take them.

In Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, the California Supreme Court found the employer liable for one hour of pay at the employee’s regular rate per each meal period and rest break during which Murphy, a retail store manager, was not relieved of his duties.  The focus of that case was whether the premiums constituted wages (which carry a 3-year statute of limitations), or penalties (which have a one-year statute of limitations).  The court found that the premiums were wages and Murphy was entitled to seek three years’ worth of premiums.  Brinker focused on whether the employer has a duty to ensure that its employees take their meal breaks, and stated that while the employer has an affirmative duty to ensure that a meal period is made available, and that the employee is relieved of his or her duties during that time, the employer should not have to pay additional premiums if an employee voluntarily chose not to take the meal period or to take a shortened one.

The court in Sav-On Drug Stores, Inc. v. Superior Court of Los Angeles County (Rocher) (2003) 113 Cal.App.4th 1152, held that issues such as employee classification and unpaid overtime could be properly asserted as class actions because the question was one of common or general interest, and issues of the employer’s policies and practices and operational standardization were likely to predominate a class proceeding over any individualized calculation of actual overtime hours owed.  In contrast, the Brinker court denied class certification, stating that the individualized inquiry that would be required by the nature of the plaintiffs’ claims and the circumstances of the parties were not amenable to class treatment.  Brinker had explained that there was no uniform meal or rest break policy because it was different for servers, hosts and bartenders than for cooks and dishwashers, and the policy differed for lunch and dinner shifts, and between restaurants and locations.  The court said these circumstances would result in hundreds of “mini-trials,” and the claims were not suitable for class determination.

Brinker is good news for California employers who have been struggling with how to force an employee to take meal periods and rest breaks, or whose operations are such that requiring a mid-shift meal period or rest break is very difficult or impossible.  It is not likely to be the last word. Because of the contrast between this case and other prior California cases discussed above, it is likely that the California Supreme Court will be requested to hear this case.

Attorneys in the Berliner Cohen Employment group will be pleased to provide further information regarding the matters discussed in this Alert:

Roberta S. Hayashi

Christine Long

Kara L. Arguello

Kate Wilson


Berliner Cohen’s experienced employment and labor trial attorneys advise and represent employers of all sizes on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes.  Berliner Cohen is one of the largest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  For almost 40 years, the Firm has developed the special expertise required by a diverse client base consisting of some of Silicon Valley’s largest corporations, new ventures, leading real estate developers, cutting-edge software manufacturers, healthcare providers, mortgage banking companies, municipalities and public agencies.  Berliner Cohen also meets the growing demands of the San Joaquin Valley with its expanding office in Merced.

©2008 Berliner Cohen.  This Alert is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.