Waiting (and waiting, and waiting) for Brinker
Do employers have to provide an opportunity for their hourly employees to take meal breaks for employees, or do they have to force them to take them? On October 22, 2008, the California Supreme Court agreed to answer that question, presented in Brinker Restaurant Corp. v. Superior Court. California employers and employees are still waiting for an answer, and it looks like they’ll be waiting a while longer.
In the meantime, the courts of appeal have been busy issuing opinions holding that employers need only make the breaks available, not force them on their employees. (I always picture a mustachioed Kevin James zooming down the hall on his Segway, shouting, “Take your hands slowly off the keyboard, step away from the desk, and walk in an orderly fashion to the breakroom.”)
Since the Supreme Court accepted the Brinker case, the courts of appeal have decided five cases addressing this question in the employer’s favor: Flores v. Lamps Plus, Tien v. Tenet Healthcare, Hernandez v. Chipotle Mexican Grill, Faulkinbury v. Boyd Associates, and Brinkley v. Public Storage. While each of those cases were also promptly depublished by the Supreme Court pending the Brinker decision, it’s clear that the lower courts want some closure to this saga, and have a pretty strong idea how it out to come down.
The Brinker case has been fully briefed for almost two full years (!), but still no hearing date has been set, and a decision isn’t expected until 60-90 days after the hearing ultimately occurs. So don’t expect a decision before 2012.
In the meantime, employers need to be documenting both the “opportunity” given to employees for breaks and efforts to make sure employees are taking them. What kind of efforts? Employees who don’t take breaks should be paid for missed breaks and disciplined. Supervisors should be drilled on the need for employees to take breaks, and should record when they do and when they don’t. A policy requiring breaks to be taken should be posted and enforced.
Hiring Paul Blart probably isn’t a good idea — let’s just hope the California Supreme Court agrees.