State Court:

In Brinker Restaurant Corp. v. Superior Court (Hohnbaum), a group of hourly non-exempt employees brought a class action against the restaurant employer claiming that the employer failed to comply with meal and rest period obligations and also required employees to work off the clock. The employees specifically claimed that: 1) the employer’s practice of having employees take “early lunches” shortly after starting their shift and then requiring them to work another five to ten hours without receiving another meal period violated Labor Code section 512(a) and the wage orders; 2) they were not provided their rest periods between their second and fourth hour of work, and were not provided the rest period before the first meal period; and 3) they were required to work off the clock when they were clocked out for their meal periods.

The employees argued that the wage and hour violations were amenable for class treatment because the employer’s non-compliance with wage and hour requirements could be determined by time card records and the employer’s policies and practices. The trial court agreed and granted class certification. The employer petitioned for a writ of mandate to the court of appeal. The court of appeal issued an unpublished decision which went up to the California Supreme Court. The Supreme Court vacated the court of appeal’s original decision and transferred the matter back to the court of appeal for reconsideration. It was on reconsideration that the court of appeal concluded that the class certification order from the trial court was erroneous and must be vacated because the trial court failed to properly consider the elements of the employees’ claims in determining whether they are susceptible to class treatment. In discussing the elements of the employees’ claims, the court of appeal handed down the following encouraging pronouncements:


1.While employers cannot impede, discourage, or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;

2.Employers need only authorize and permit rest periods every four hours or major faction thereof and they need not, where impracticable, be in the middle of each work period;

3.Employers are not required to provide a meal period for every five consecutive hours worked;

4.While employers cannot impede, discourage, or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken;

5.While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so;

6.Because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, [based upon the evidence presented to the trial court], they are not amenable to class treatment; and

7.Off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether [Brinker] forced employees to work off the clock, whether [Brinker] changed time records, and whether [Brinker] knew or should have known employees were working off the clock.

NOTE: The California Supreme Court has granted review of the Brinker case and we anticipate a decision in the Spring 2009 (hopefully affirming the Court of Appeal decision). Also, the Labor Commissioner issued a memo on October 23, 2008 withdrawing an earlier support memo of the Brinker case pending the decision of the California Supreme Court.

 Federal Court:

In the federal case Kenny v. Supercuts, Inc., plaintiff filed a complaint against Supercuts for failure to provide meal periods; failure to pay the additional one hour of pay per day required by Labor Code 226.7; “waiting time” penalties; failure to provide accurate itemized wage statements; and restitution for violation of Business and Professions Code section 17200.