How Will the Brinker Decision Impact your Business? 37 Offices in - - PowerPoint PPT Presentation

37 Offices in 18 Countries

How Will the Brinker Decision Impact your Business?

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What is Brinker?

• Brinker Restaurant Corp. and Brinker International, Inc. operate

several well-known chain restaurants including Chili’s throughout California.

• Chain sued by hourly employees seeking compensation as class

for

• Failure to provide meal periods or premium pay
• Failure to provide rest periods or premium pay
• Requiring employees to “work-off-the-clock” during meal periods
• “time shaving” or unlawfully altering employee time records
• The Cal. Supreme Court granted review of the case to “resolve

uncertainties in the handling of wage and hour class certification motions.”

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For Position Only

• Rest period obligations
• Meal period obligations
• The decision’s impact on class actions
• Future implications
• Best practices

What will we cover?

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development Project and Knowledge Management

Rest Period Obligations

• The law:

“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours.” IWC Wage Order No. 5, subd. 12.

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development Project and Knowledge Management

Rest Period Obligations

• Employers are not obligated to ensure that employees take rest

breaks.

• Employers must “provide” employees a reasonable opportunity

to take their rest breaks.

• If employees voluntarily choose to work through rest periods, no

premium is due.

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Rest Period Obligations (cont’d)

• Rest breaks are required as follows:

Zero to less than 3.5 hours worked = No rest periods owed 3.5 hours to 6 hours worked = One rest period 6 hours to less than 10 hours worked = Two rest periods 10 hours to less than 14 hours worked = Three rest periods

• What is a “major faction?
• anything more than two hours in the prior four-hour work period

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Rest Period Obligations (cont’d)

• Rest break timing requirements:
• Ideally rest break should occur in the middle of the work period
• Does not have to occur before a meal period
• Review your rest break policy.
• Update to address number of breaks available based on hours worked
• Include “major fraction” language

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Meal Period Obligations

The law: “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” Labor Code sec. 512(a)

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Meal Period Obligations (cont’d)

• Employers are not obligated to ensure that employees take meal

periods.

• Employers must “provide” employees a reasonable opportunity

to take their meal periods.

• relieve employees of all duty
• relinquish control over activities
• do not impede or discourage employees from taking meal

periods

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Meal Period Obligations (cont’d)

• If employer met obligation and employee voluntarily chooses to

work through a meal period, no premium is due.

• Employers are required to pay employees for the time spent

working during meal periods if employer knows or has reason to know employee worked for all or part of the time.

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Meal Period Obligations (cont’d)

Timing of Meal Periods

• Court rejected “rolling 5 hour meal periods”
• First meal period must be provided no later than the fifth hour of

work .

• May be waived by mutual consent if employee works no more than six

hours.

• “Early lunching”
• Second meal period must be provided no later than the tenth

hour of work unless:

• Waived by mutual consent and
• First meal period not waived.

Staffing Models

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Meal Period Obligations (cont’d)

On Duty Meal Periods

• On Duty Meal Periods permitted in limited circumstances:
• The nature of the work prevents an employee from being

relieved of all duty;

• On duty meal period treated as hours worked
• Employee agrees in writing to the on duty meal period
• Must be revocable
• No premium pay obligation
• If you don’t meet the test, then duty free meal breaks must be

provided or premium pay is due.

Staffing Models

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Class Certification Basics

• Basic elements:
• Existence of an ascertainable and sufficiently numerous class;
• Well-defined community of interest within the class;
• Substantial benefits from certification render proceeding as a class

superior to other alternatives.

• Brinker involved whether the issues that may be jointly tried,

when compared to those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

• If the defendant’s liability can be determined by facts common to

all members of the class, a class will be certified even if the members must individually prove their damages.

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Certification Lessons

• Whether common or individual questions predominate will often

depend upon resolution of issues closely tied to its merits.

• Trial court must determine whether the elements necessary to

establish liability are susceptible of common proof or whether there are ways to manage effectively proof of any elements that may require individualized evidence. (Duran v. US Bank Corp.)

• Any “peek” the court takes at the merits must be limited to those

aspects that effect the decision essential to class certification.

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Employers Should Wait on the Merits

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Certification of Rest Break Claims

• Brinker held the rest break claims could be certified for class

action.

• The employer policy did not comply with the statement of the law

therefore there was a common illegal policy applicable to all members of the Rest Break subclass.

• Court declined to comment on whether a rest break claim could

be certified so long as the employer had a compliant policy.

• Court also left open the kind of circumstances that would excuse

providing break mid-way through a working period so possibilities for class claims remain based on when breaks are scheduled and whether the employer complied with the policy.

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Certification of Meal Period Claims

• Supreme Court remanded the case – the trial court has to

reconsider certification in light of the correct statement of the law.

• Trial court decision was faulty because of a mistake of law.
• Court’s majority opinion did not address whether claims under

the “relieved of all duty” standard are susceptible to class treatment.

• Two justice concurrence went out of its way to reject defendant’s

argument that meal period claims cannot be certified because individual issues will predominate.

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What Have We Been Waiting For?

• Supreme Court asked for briefs in January 2012 regarding

whether it could issue the decision prospectively.

• What did they say about that?
• NOTHING!
• That means the rules apply retrospectively which is good news

for many employers, but the time to change break policies to match new interpretation is NOW.

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What Plaintiffs’ Lawyers Are Saying

• Look for cases based on practices and policies.
• Certification is still possible but it has to be backed up by

evidence.

• Next battle is how far Duran condemns statistical evidence to

prove liability.

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Client Service and Feedback Value-based Pricing Process and Resource Optimization Training and Development

Best Practices Post-Brinker

• Review your meal and rest break policies
• Train your employees, supervisors and managers
• Keep your ear to the ground
• Pay for all time worked during rest or meal periods.
• Pay premiums when business requirements do not permit

employees to have a duty free meal and/or rest period. Consider creating a form for this purpose.

• Do not allow employees to work “off the clock” and put it in

writing.

• If you have employees taking on duty meal periods, review the

basis and need for doing so.

• Prepare forms and document meal period waivers as

appropriate.

Staffing Models

For Position Only

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