Employment Law Daily Ninth Circuit certifies questions about meal and rest break policies to California Supreme Court
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Monday, August 5, 2019

Ninth Circuit certifies questions about meal and rest break policies to California Supreme Court

By Ronald Miller, J.D.

In Brinker, the California Supreme Court explained that an employer must relieve the employee of all duty for the designated meal period, but need not ensure that the employee does not work.

The Ninth Circuit requested that the California Supreme Court resolve two certified questions: (1) Does the absence of a formal policy regarding meal and rest breaks violate California law? And (2) Does an employer’s failure to keep records of meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided? The appeals court observed that the answers to these questions are dispositive of this case and are not answered by clear California precedent (Cole v. CRST Van Expedited, Inc. fka CRST, Inc., August 1, 2019, per curiam).

Meal and rest break claims. In this case, the employee, a truck driver, filed a class action against his employer alleged that drivers did not receive the meal and rest breaks required under California law. The employee alleged that the truck drivers were not provided with rest periods for work periods of four hours or major fractions thereof or meal periods for work days in excess of five and 10 hours. He also asserted that drivers were required to work through their daily rest periods and meal periods, or work an on-duty meal period. According to the employee, the employer neither permitted nor authorized him or other class members to take lawful meal and rest periods.

The employee sought to represent various subclasses of drivers who were not provided with the requisite meal and rest breaks, or compensation in lieu of the breaks. The meal and rest period claims depend on provisions of California Labor Code § 226.7 and Industrial Welfare Commission (IWC) Wage Order 9.

Rest break. The employer kept in contact with its drivers and monitored their progress through an onboard communications system, which permitted it to ascertain a truck’s location at all times. While the employee agreed that it was up to him and his co-driver to decide the number of miles they traveled each day, he stated that the employer wanted him to “keep the truck moving.”

Although the employee confirmed that no one from the employer told him when to stop, and acknowledged that he could take a 10-minute break whenever he wanted, he contended that he was unable to take meal and rest breaks because he needed to “keep the wheels rolling” in order to remain timely on his deliveries and receive payment.

Meal break. According to the employee, the employer did not instruct him that he could take a 30-minute meal break. He testified that he lacked the authority to change the assigned pickup and delivery times, even when the delivery deadline did not allow enough time for meal and rest breaks. If he rejected a load because he was unable to schedule meal and rest breaks, he would be reprimanded, placed at the bottom of the dispatch list, and the refusal would be documented in his performance file.

Employer policy. For the employer’s part, a representative testified that it was the employer’s policy for drivers to run their trip and take their breaks appropriately when they need to and when they feel the need to. Further, he stated that California’s policies concerning meal and rest breaks were posted on a bulletin board at its terminal. Other drivers testified that they were able to take breaks, although one testified that a dispatcher cautioned her not to take a break when her delivery was behind schedule.

Relying on Brinker Restaurant Corp. v. Superior Court, the district court granted summary judgment in favor of the employer, concluding that it satisfied its obligations to provide meal and rest breaks by providing a reasonable opportunity for its employees to take mandated breaks. The district court observed that the employee did not present any evidence apart from his declaration that the employer compelled its employees to skip break periods based on its load or average speed requirements. The district court also granted the employer’s motion to decertify the meal and rest break classes.

Relinquish control. The employee asserted that the district court erred in concluding that the employer complied with California law simply because it did not prevent its employees from taking breaks. Rather, he asserted that California law mandated that the employer affirmatively provide breaks by adopting a policy authorizing them. In this case, the employer did not have such a policy, did not record meal breaks on its payroll statements, and did not pay its drivers for rest breaks.

Under Brinker, an employer satisfies its obligation to provide meal periods if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. Nevertheless, the employer is not obligated to police meal breaks to ensure no work it performed.

However, the California Supreme Court did not directly address in Brinker whether the absence of a policy providing for meal and rest breaks constitutes a violation of California labor law. Rather, it pointed to two decisions of the California Court of Appeal in Benton v. Telecom Network Specialists, Inc, and Bradley v. Networkers International, LLC, as holding that the absence of a uniform policy may support class certification. Moreover, the California Supreme Court’s statement in Duran v. U.S. Bank National Association, does not clearly indicate whether it is inclined to hold that an employer violates the California Labor Code because it lacks a formal policy for meal and rest breaks.

It is also unclear whether the California Supreme Court would apply a presumption that the employer is liable for California Labor Code violations based on its failure to keep records of its employees’ rest and meal breaks.

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