Litigating California Wage & Hour and Labor Code Class Actions

federal decisions also held that an employer’s duty to “provide” a meal period is to make it
available and that meal period claims based on a mere failure to ensure employees took
meal periods are unsuitable for class certification. 144
Finally, on April 12, 2012, the Supreme Court issued its decision in Brinker. 145 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. The Court 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.” 146 “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.” 147 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.” 148
The Court 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.” 149 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. However, 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. The Court rejected the plaintiffs’ contention that a meal
144
145
146
147
148
149
See White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007) (cited in Brinker; first published decision to hold
“provide” means “make available.”); Brown v. Federal Express Corp., 249 F.R.D. 580, 585-86 (C.D. Cal. 2008)
(“Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous
or who . . .do not appear to remain in contact with the employer during the day.”); Kenny v. Supercuts, Inc., 252 F.R.D.
641, 645-46 (N.D. Cal. Jun. 2, 2008) (“[The Labor Code] does not require an employer to ensure that an employee take
a meal break.”); Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529, 533 (S.D. Cal. 2008) (“The Court agrees with the
compelling reasons advanced by the White, Brown, and Kenny decisions for interpreting ‘provide’ to mean ‘make
available’ rather than ‘ensure taken.’”); Kohler v. Hyatt Corp., 2008 U.S. Dist. LEXIS 63392, at *18 (C.D. Cal. Jul 23,
2008) (“An employee must show that he was forced to forego his meal breaks, as opposed to merely showing that he
did not take them regardless of the reason.”); Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal., Nov.
28, 2011) (noting that employers only need to make meal periods available to employees and that posting a copy of the
Wage Order was sufficient to advise employees of that right).
2012 WL 1216356 (Cal.)
Id. at *14.
Id. at *17; citing Morillion v. Royal Packing Co., 22 Cal 4th 575, 584-585 (2000).
Id. at *18 n 19; Quoting DLSE Opinion Letter No. 1991.06.03.
Id. at *24.
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