By Lexe Davidson, Associate
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
The Education Code defines overtime for classified employees to include any time required to be worked in excess of eight hours in one day. (Sections 45128 and 88026.) If a classified employee's workday is less than 8 hours-a-day, but more than 7 hours-a-day, all time worked in excess of the established workday is overtime. The Education Code further provides a meal period shall occur approximately at the mid-point of a classified employee's shift. (Section 45180 and 88180.) There sections are applicable to merit system districts.
In most public school and community college districts, and county offices of education, meal and/or rest periods are collectively bargained between the employee bargaining unit and the public school employer. The terms of the collective bargaining agreement control the entitlement to, and the conditions of, meal and/or rest periods. Similar to private employers, a public school employer must provide employees an uninterrupted meal or rest period, as provided under the collective bargaining agreement, in which employees are relieved of any duty and employer control, and are free to come and go as they please. Failure to do so may result in a grievance, an unfair labor practice charge, or a lawsuit. However, a public school or college employer is not required to ensure its employees take the afforded meal and/or rest period.
A public school or college employer will also be held liable for overtime wages if an employee works in excess of a eight hours (or his or her workday schedule if less than eight hours and more than seven hours), including working during a duty-free meal or rest period. If an employer is aware an employee is working during his or her meal or rest period, the employer must counsel the employee against working during the meal or rest period. Managers and supervisors should review the current collective bargaining agreement to be aware of the terms and conditions of meal and/or rest periods for their employees.
