In California employers must comply with many rules not found in other states, including rules related to meal and rest periods. Several years ago the law was modified so that employers who did not provide a meal or rest period to employees were penalized. The penalty, known euphemistically as a "premium" is calculated at one hour of the employee's wage. In addition, the courts concluded that failing to pay the premium by the time the worker's employment terminated gave rise to wating period penalties -- calculated at the employee's daily rate of pay -- for up to 30 days. Failure to pay the "premium" also gave rise to a claim for attorneys' fees.
In 2008 in Brinker v. Superior Court (Hohnbaum), a Court of Appeal concluded that the employer's responsibility was not to ensure meal and rest periods were taken, but simply to provide them. If an employee chose not to take a meal or rest period, the employee could not later sue his/her employer for failing to provide the meal or rest period. Of course, the court said that if the employer interfered with the employee's right to take a meal or rest period then the employer would be subject to the "premium."
In October of 2008, the California Supreme Court granted review of the Court of Appeal decision. This means that the appellate decision in Brinker is not controlling law, nor can it be cited as legal authority. Of course, this has complicated the situation in California. For example, the Division of Labor Standards Enforcement ("DLSE") has taken the position that although Brinker has been decertified, it will still enforce the law in accordance with Brinker -- but do it according to other legal authorities. Many employers are still wary, however, because they fear the Supreme Court will reverse the decision of the Court of Appeal and impose the penalties for situations where employees, of their own choosing, did not take a meal or rest period.
On May 10, 2011, another Court of Appeal ruled in the Lamps Plus Overtime Cases that employers must allow workers to take rest periods, but employers are not required to ensure that workers take them. In other words, Lamps Plus agrees with the Court of Appeal in the Brinker case.
The impact of these rulings is also substantial in another area -- attorneys' fees. Attorneys love to file class action wage and hour cases. If rest and meal periods are mandatory, it doesn't matter why the worker didn't take the rest or meal period. The employer is liable under any circumstance. This gives rise to a class action lawsuit since the predominant question will be whether workers missed meal or rest periods. However, if a worker must prove why (s)he did not take a rest or meal period, the predominant question is why the employee missed it. Every case is different. It will depend on the particular circumstances of the case. As a result, this type of case is not appropriate for class action status. The poor lawyer doesn't get enough money. Yes, I am sad too.
Let's hope the Supreme Court issues an opinion soon in the Brinker case and puts this issue to rest. Let's also hope the Court affirms the ruling of the Court of Appeal, which is well-reasoned. If the employer interferes with the employee's right, it should pay the consequence. However, if the employee chooses to skip a meal period, the employer should not be held to pay.