Blog : employment law

Jack W. Lee in California Lawyer Magazine

Jack W. Lee in California Lawyer Magazine

Firm partner Jack W. Lee was part of an expert panel discussion featured in this month’s issue of California Lawyer magazine. Jack and four other attorneys shared their thoughts on recent developments and cases in employment law. Read the issue online at

Landmark Brinker Decision Clarifies Employer’s Burden to Provide Breaks, Continues Use of Class Actions

By Kevin R. Allen, CERG Practice

On April 12, 2011, the California Supreme Court issued its decision in Brinker v. Superior Court (S166350). The opinion was highly anticipated because it could have potentially, on one extreme, eliminated wage and hour class actions based on break claims altogether or, on the other extreme, made employers strictly liable for missed breaks regardless of fault.

In finding a middle ground, the decision has a little something for everyone. With respect to meal periods, it held that an employer satisfies its obligation to “provide” a meal period “if it relieves an employee of all duty” for an uninterrupted 30-minute break and does “not impede or discourage” employees from taking this break. Once an employer meets this obligation, it is “not obligated to police meal periods and ensure no work is performed.” The court clarified that the employer must provide a first meal period after no more than five hours work and a second meal period after no more than ten hours of work, as opposed to every five hours as was argued by plaintiffs in the case.

The Supreme Court held that an employer satisfies its burden to “authorize and permit” a 10 minute rest break for each four hours of work “or major fraction thereof” through 10 minutes of rest break time for shifts of three and half hours to six hours, 20 minutes for shifts of more than six hours up to 10 hours, and 30 minutes for shifts or more than 10 hours and up to 14 hours, and so on. Rest breaks can occur at any time during the shift, either before or after the meal period.

Lastly, the Court indicated that there is no per se rule against using the class action device to address meal and rest breaks: “Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.”