Some 60,000 food-service workers in California--and possibly that many employment lawyers--are awaiting the state Supreme Court's response to the prosaic demand, "Gimme a break."
This legal dispute started with a cook, two bartenders, and two waiters employed by the Brinker Restaurant Corp.--workers who stare at other people's food all day but complained they rarely had time to eat their own meals. Either that, or they were ordered to eat shortly after their shift started, and then work straight through without another break.
The employees sued, and in April 2006 the trial court certified a class of more than 59,000 employees at 137 Brinker restaurants in California, including Chili's Grill & Bar, Romano's Macaroni Grill, and Maggiano's Little Italy. The plaintiffs allege that Brinker either required them to work off-the-clock during meal periods, failed to provide timely breaks, or provided no breaks at all.
California restaurant workers are not alone in their complaints. Kevin R. Kish, director of the employment rights project for Bet Tzedek Legal Services in Los Angeles, says L.A. County has nearly 5,000 garment-factory sweatshops, where workers average ten-hour days doing piecework--meaning they aren't paid for time away from their machines. When hotels cut housekeeping staff, Kish says, they may require the remaining maids to clean 20 rooms a day instead of 10, which means breaks just aren't possible even thought they are officially permitted. And at automated car washes, he adds, employers maintain the pace of the chain so that employees assume they're not meant to take breaks.
But Richard J. Simmons, a partner at Sheppard Mullin Richter & Hampton in Los Angeles who represents employers, calls meal-and-rest-break class actions a "sweeping epidemic" that carries a "staggering cost to California employers." Indeed, between 2003 and 2009, more than 2,750 such lawsuits were filed against the state's employers, according to data from the Courthouse News Service.
Whether a claim is based on a work-break violation, failure to pay overtime, or some other wage-and-hour transgression, the liability can be great. In 2005, a jury tagged Wal-Mart Stores with $57 million in meal-break payments and tacked on another $115 million in punitive damages. That's not an isolated example: In 2007 United Parcel Service settled a case for $87 million, and First American Title paid out $15.1 million. A year later, CVS Rx Services Inc. settled claims for nearly $20 million. And in 2009 NCR Corp. paid $10.5 million, followed by MetLife Inc. at $7.4 million.
Brinker Restaurant has already paid for previous violations. A 2000 investigation by the state Division of Labor Standards Enforcement of alleged failure to provide meal periods led to a $10 million settlement in 2002. Four years later the current plaintiffs filed their private action. But in July 2008 an appellate court vacated the trial court's class certification order, agreeing with the employer that it would require a claim-by-claim review of the reasons for missed meals and rest breaks (Brinker Restaurant Corp. v. Superior Court
, 165 Cal. App. 4th 25 (2008)).
The state Supreme Court granted the plaintiffs' petition for review that October, setting up significant questions of statutory interpretation: Must an employer actually relieve workers of all duty so they can take mandated meal breaks, as held by the Third Appellate District? (Cicairos v. Summit Logistics Inc.
, 133 Cal. App. 4th 949 (2005).) Or may employers comply simply by making meal breaks "available," as the Fourth Appellate District held in Brinker
If employers must ensure that workers take breaks, the class issue becomes a simpler task of examining the employer's records. But even if the duty is only to make breaks available, says Kimberly A. Kralowec, one of the attorneys representing the Brinker
plaintiffs on appeal, common issues for class certification could still be resolved by expert testimony about employer practices.
Unaccountably, the Brinker
appeal has languished on the high court's back burner for nearly two years. In the meantime, six more appellate meal-and-rest-break decisions have accumulated on its docket. By the court's summer break, no date for oral argument had been scheduled.
The "make available" versus "ensure" debate between the appellate districts is the question everyone wants answered, says Kralowec, principal at the Kralowec Law Group in San Francisco. She points out that since 1916, Industrial Welfare Commission (IWC) wage orders have mandated that time be set aside for meals. After a 1998 wage order change that would have capped overtime pay at eight hours a week for part-time workers, the state Legislature in 1999 restored overtime protection and expanded mandatory meal-and-rest-break protections with the Eight Hour Day Restoration and Workplace Flexibility Act. (AB 60 (Knox) (1999).)
As part of the act, lawmakers added section 512 to the Labor Code, requiring employers to "provide" meal and rest breaks. A year later, following the IWC's lead, they added section 226.7, imposing fines for violations where previously only injunctions were allowed.
"The defense bar seized on the word 'provide' in the two new sections to argue the Legislature intended to radically change a law that had been in existence for 85 years," Kralowec says.
Rex S. Heinke, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld who represents Brinker, says the company would not comment on the case. But according to Sheppard Mullin's Simmons, who filed an amicus brief on behalf of hospital, retail, restaurant, and small-business groups, "Everyone is still on the edge of their seats wondering what the law is."
Simmons contends that a wave of class actions followed enactment of section 226.7, which allowed a sanction of up to two hours' pay per day for meal-and-rest-period violations. "This is fueled by the avarice of the plaintiffs lawyers, and has to do with lawyers lining their own pockets," he says.
L. Tracee Lorens, owner of the San Diego firm of Lorens & Associates who represented the Brinker workers during trial court proceedings, bristles at the charge that class actions are lawyer-driven and self-serving. "The Brinker firm settled for $10 million for violating meal-and-rest-break laws, and then it continued the same practice," Lorens says. "I'm just a three-lawyer firm working against up to five national defense firms that could easily drive me out of business."
In more than a dozen amicus briefs, employer groups argue that they and their workers want the flexibility to be able to skip lunch to leave early for a doctor's appointment, or to pick up the kids from school. But Lorens says that argument is disingenuous. "I have yet to see a Brinker restaurant let an employee go home early if he or she worked through a lunch break," she says.
One unusual hurdle for the Brinker
plaintiffs to overcome is an amicus brief filed by the labor standards division in support of the appellant. Filed in August 2009 during the Schwarzenegger administration by Labor Commissioner Angela Bradstreet, the brief argues that although employers can't impede or discourage workers from taking meal breaks, "they need only provide them and not ensure that they are taken."
Bet Tzedek's Kish says he found Bradstreet's brief "pretty shocking" because her position would reverse decades of the agency's enforcement policy. "The brief came at the end of a politicized period, when Governor Schwarzenegger made it an issue to change that policy," Kish says.
But Kralowec isn't sure how heavily it will weigh on the court. For instance, she points to a footnote in a unanimous California Supreme Court opinion describing the premium-wage-versus-penalty issue as "highly politicized." (Murphy v. Kenneth Cole Productions Inc.
, 40 Cal. 4th 1094, 1106 & n.7 (2007).)
Despite the arrival of a new administration in Sacramento, however, there is no indication that Gov. Jerry Brown's new labor commissioner, Julie Su, intends to step into the Brinker
dispute by revising Bradstreet's amicus brief.
Pamela A. MacLean, a freelance writer based in the Bay Area, has reported on state and federal courts for 25 years.