We have a new development in the well-publicized meal period case Brinker Restaurant v. Superior Court (Hohnbaum) … the filing of the Reply Brief on the Merits by the Real Party in Interest Hohnbaum. Get ready for the amicus free for all, which will no doubt ensue shortly.
The court in Brinkley v. Public Storage, Inc. decided by the Second Appellate District on October 28, 2008, agreed with the holding of the appellate court in Brinker v. Superior Court that employers only have to provide meal breaks and not ensure that they are taken.
Brinkley also addresses another hotly litigated wage and hour issue regarding the need to prove intent and injury from a paystub violation. More specifically, the plaintiff in Brinkley alleged that defendant violated California Labor Code section 226, subdivision (a), which requires employers to provide pay stubs that list (among other items): “(1) gross wages earned, (2) total hours worked by the employee . . . and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.”
The Court rejected plaintiff’s arguments and affirmed the trial court’s finding that the defendant demonstrated that the wage statement errors were inadvertent and corrected when discovered and that the employer did not knowingly and intentionally violate section 226, subdivision (a). The Court also rejected Plaintiff’s arguement that the receipt of an inaccurate paystub ipso facto constitutes injury within the meaning of section 226, subdivision (e), holding that section 226 requires a plaintiff to actually suffer injury to recover damages or statutory penalties.
We expect the Supreme Court to issue a “grant and hold” review order, deeming this a related case to Brinker Restaurant Corp. v. Superior Court, so stay tuned … this order is likely to come down by the end of January 2009.
The Califoria Supreme Court on October 22, 2008, voted 6-0 in favor of granting the petition for review in Brinker Restaurant Corp. v. Superior Court of San Diego County, a major employment law decision over meal and rest breaks. Justice Kathryn Werdegar was absent and did not participate in the vote.
The 4th District Court of Appeal in the Brinker decision concluded that while employers can’t discourage employees from taking rest periods, they do not have to ensure the breaks are taken and can only be held liable for employees working off the clock if they were or should have been aware of them doing so - a notable initial victory for employers.
The Supreme Court’s review of the matter will no doubt place employers on edge as they await a decision, while employees enjoy the possibility that they may in fact have the last hoorah.
For past coverage of the Brinker matter, click here.
Brinker Update - On September 29, 2008, Plaintiffs’ filed their Reply to Answer to Petition for Review with the California Supreme Court in the well-publicized meal period case Brinker v. Hohnbaum. The California Supreme Court has 60 days from August 29th, the date the Petition for Review was filed, to decide whether to grant review. In certain instances, the Court may decide to extend the time period for determining whether to grant review by 30 days. in which case we should expect a decision by November at the latest. For past coverage of the Brinker matter, click here.
SB 1777, Mediation Funding Bill, Vetoed by Governor Arnold Schwarzenegger - SB 1777 written by State Senator Mark Ridley-Thomas would have raised an estimated $5 million for mediation programs through a $5 increase in filing fees on all civil cases. In his veto message, Schwarzenegger wrote, “Although I support the effort to secure a non-General Fund source of funding for these programs, I am not comfortable increasing court fees at this time,” stating that “this would create an additional burden on the public, many of whom use our court system and would face the increased fines.”
The Court of Appeal’s opinion in Brinker Restaurant Corp. v. Superior Court filed on July 22, 2008, addresses several heavily litigated issues regarding meal and rest period claims.
By way of background, the Brinker Restaurant Corporation operates over 100 restaurants in California. Adam Hohnbaum represented a putative class of some 59,000 restaurant workers who are “non-exempt” from overtime, minimum wage, and meal period laws (i.e., servers and other non-management personnel). The plaintiffs alleged a number of claims against Brinker, including failure to provide non-exempt employees with mandated 10-minute rest periods for every four hours worked; failure to provide 30-minute meal periods as required by law; and requiring employees to perform work “off the clock” when they were “punched out” for their meal periods.
On July 22, 2008, the Court of Appeals decided the case and held:
We conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs’ claims in determining if they were susceptible to class treatment. Specifically, we conclude that (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 fraction 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; and (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. We further conclude that 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. Finally, we conclude the 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.
While there were no doubt celebrations being held by employers and their counsel upon review of the Court of Appeals’ decision, the outcome of Brinker and its effect on the future of meal and rest break class action lawsuits is far from finalized. The latest development in the case happened on August 29, 2008, when the plaintiffs in Brinker filed their Petition for Review in the California Supreme Court. We will continue our coverage of this topic as it develops, so stay tuned and for all those employers out there - - don’t get out the bubbly just yet.
