Court Confirms Brinker Meal Period Standard and Plaintiff’s Higher Burden of Proof
After years of wrangling and litigation, an employer’s meal period obligation under California Labor Code section 226.7 was clarified in the landmark California Supreme Court decision of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. In that case, the issue was whether employers must (1) merely make meal breaks available to their employees (Make Available Standard), or (2) actually ensure employees take their meal breaks (Ensure Standard).
The Supreme Court adopted the Make Available Standard. Under this standard, the employer is only required to relieve its employee of all job duties for the taking of a meal break. If that opportunity is made available to the employee, the employee may then choose to skip or delay the meal break (e.g., an employee may skip a meal break in order to leave work early). In contrast, the previous, and now rejected, Ensure Standard an employer had to ensure its employees took a meal break regardless of whether or not the employee wanted to take one.
On October 23, 2014, the Court of Appeals confirmed the adoption of the Make Available Standard in In re Walgreen Company Overtime Cases, 2014 DJDAR 15213. In so doing, the Court found that under the Make Available Standard, the plaintiff has a higher burden of proof in certifying a class action on the basis of a meal break violation. Certain evidence that previously would have been sufficient to certify a class may no longer suffice to meet a plaintiff’s burden of proof. For example, an employee’s timekeeping record showing that the employee did not clock out for lunch does not mean the employer has violated its meal break obligation. The plaintiff must show that the employee did not clock out for lunch because he or she was not provided an opportunity to do so. However, merely showing that the employee failed to clock out for lunch is not enough.
It is also worth noting that the plaintiff in this case presented the following three types of evidence to support his claim that the employer failed to provide its employees with a meal break:
- An expert statistician retained to analyze payroll data to discover how often employees did not take their meal breaks.
- Emails from Walgreen’s management repeatedly exhorting its store managers to ensure they complied fully with meal break laws.
- 44 form declarations from employees, stating that on some occasions “meal periods were not made available to me” because “we were short-handed and I was required to work through my meal period.”
For various reasons, the Court rejected the plaintiff’s evidence as insufficient to establish that Walgreen’s violated the Labor Code.
To read the full text of In re Walgreen Company Overtime Cases, please click here.