Employers Shalt Not "Encourage" Employees to Work During Meal Breaks -- Brinker v. Superior Court

The California Supreme Court's long-awaited decision in Brinker v. Superior Court finally addressed the question of what an employer must do to effectively "provide" a meal break and thereby avoid the one-hour of pay due as premium or penalty pay.

In Brinker the plaintiffs advocated for a rule that merely allowing an employee to work during his meal period must trigger a penalty.  The defense bar advocated for a rule that no penalty is owed unless the employer has affirmatively "forced" the employee to work. The Court however went for a middle ground.  Under the new rule an employer must take certain affirmative steps (and refrain from others) in order to meet its legal obligation to provide a compliant meal break. 

What An Employer Must Do to Avoid A Penalty.

In particular, the employer must have a policy and affirmatively create the actual conditions that will "relieve the employee of all duty" and allow him to engage in any personal business or leave the premises during for the entire 30-minute break period.   If an employer takes these afirmative steps in good faith and the employee nevertheless performs work during his break no penalty is owed.    

What An Employer Cannot Do Without Paying a Penalty.

Many employers are clearly over-reading Brinker as simply allowing them to propound a policy and then having their workers "waive" their breaks.   In reality, Brinker is replete with warnings that this "waiver" defense will be difficult to establish and will be forfeited if the company engages in any practices that have the intent or effect of "undermining" break rights.  These forbidden practices include:

  • "discouraging" or "impeding" workers from taking breaks.
  • “pressuring employees to perform their duties in ways that omit breaks.”
  • “creating incentives to forego” breaks.
  • “otherwise encouraging the skipping of legally protected breaks.”

 Courts and parties will have to grapple with the meaning of these terms in individual cases and different industries.  But it seems to me that meal break litigation will start to resemble nothing so much as Title VII disparate impact cases -- i.e., the focus of litigation will be on whether facially neutral business practices may have crossed the line into having an impermissible (and perhaps unintended) effect on employee rights.  

Brinker v. Superior Court Decision To Be Published Tomorrow

The California Supreme Court announced today that the opinion in Brinker v. Superior Court (Hohnbaum) will be published tomorrow at 10:00 a.m. The opinion will address many issues surrounding meal and rest break requirements under the California Labor Code, such as whether employers need to ensure or simply provide meal breaks, and when breaks should be taken during a shift.

For more information on the decision we will be holding a webinar next Wednesday at 10:00 a.m. PST. Registration information is here.

Keith Oberman sues Al Gore's Current TV for Wrongful Termination -- Olbermann Broadcasting Empire v. Current TV, LLC

Political commentator Keith Olbermann was recently terminated from Current TV, a start-up political network backed by Al Gore.  The well-publicized termination involved allegations of not showing up for work and being generally insufferable.

Olbermann has now filed his own wrongful termination complaint in Los Angeles Superior Court, alleging that Current TV breached the contract first due to its incompetent production of his show.  The gist of his theory is captured in the opening paragragh:

After being enticed to leave MSNBC and come to Current with promises of editorial control, freedom from corporate influence, and the professional support to produce a high-caliber political commentary show of the type his viewers have come to expect, Keith Olbermann was disheartened to discover Al Gore, Joel Hyatt, and the management of Current are no more than dilettantes portraying industry executives. 

Oddly, while the Complaint is supposedly premised on Current TV's breach of contract, it fails to allege any specific facts establishing the formation of a valid contract, the terms of the contract, or how the alleged conduct (if true) would have been a breach of any particular contract term.    

Olbermann's attorneys undoubtedly realize this makes the lawsuit legally defective on its face.  So the omissions probably stem from one of two reasons, either: (a) the Parties have struck an agreement to keep the contract out of the public record to avoid embarrassment; or (b) the  Complaint is not really intended not as a serious legal pleading but more of a lengthy press release (which is immune from defamation liability as a public filing). 

Webinar - The Impact of Brinker: Understanding The Supreme Court's Decision On Meal & Rest Breaks

Be among the first in California to understand the complete impact the monumental decision in Brinker v. Superior Court will have on employers. The Court’s decision is expected on April 12, and Anthony Zaller and Daniel Turner will analyze and discuss the impact of the decision. The webinar will explain the decision and what it means for employers and wage and hour class actions, discussing among other items:

  • Can meal periods be offered to employees, or do they need to be ensured?
  • When during the shift can meal and rest periods be taken?
  • What does the Court’s ruling mean for the status of meal and rest break class actions and class certification issues?
  • What is the impact for cases currently being litigated?

The cost is $150 per connection. 

Date: Wednesday, April 18
Time: 10:00 a.m. PST

Click here to register.  Existing clients can email us here to have the fee waived.