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North Bay Business Journal

Monday, May 14, 2012, 6:00 am

Experts urge caution in ruling on meal and rest breaks

Employers still need to carefully shape policies fit for their industry

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    NORTH BAY — A recent state Supreme Court decision has greatly clarified the long contentious issue of when and how employers must provide meal and rest breaks — or at least the opportunity for meal and rest breaks — but employers still need to think carefully about the matter, employment law experts said.

    The case, Brinker Restaurant Corp. vs. the  California Supreme Court, affects thousands of employers in the state and perhaps million of employees, many in the service industry. But while employment law attorneys in the North Bay echoed the notion that the verdict is, overall, an employer-friendly decision, they cautioned that it is no cure-all and that there is always room for  interpretation.

    Richard Rybicki

    “The number one impact of Brinker was that it validated the positions that most attorneys and the labor commission had taken for a long time,” said Richard Rybicki, who heads  Napa-based employment and labor firm Rybicki & Associates. “Employers need to provide but not require employees to take breaks.”

    The issue has vexed employers, many of whom dealt with a steady flow of class-action wage suits because of disputes related to whether the employer was required to force workers to take rest and meal breaks. The ruling put much of that to rest, though, saying that employers are required to offer 30-minute breaks but the employees are is free to decide how they use that time, even if they opt out of the break and continue working.

    “The employer is not obligated to police meal breaks and ensure work thereafter is performed,” Associate Justice Kathyrn Werdegar wrote in the majority opinion.

    “The contention was really driven by a lot of wage and hour class actions. Plaintiffs thought employers should drag employees out by the ear to take breaks,” said Shane Anderies, a partner at Anderies & Gomes, an employment and labor law firm with offices in Santa Rosa and San Francisco.

    That’s no longer the case, but Mr. Anderies and Mr. Rybicki both said issues could still arise, and that employers should not let their guard down because of the perceived favorable nature of the ruling.

    “You only need to show that you offered a break period, but the court threw some wrinkles into it,” Mr. Rybicki said. “An employer can’t create a workflow that interferes with someone to take a break. And that’s a problem in some industries where there is no way for the employer to change the workflow. So employers who have a work flow that will naturally interfere with the ability to take a break will have to think ahead.

    Service industry employes at restaurants and bars, for example, often work off of tips, which could be viewed as an incentive to not take breaks. Similarly, if a manufacturer paid employees on a per-piece rate, that could also be a disincentive for employees, Mr. Rybicki said, adding that element of the law could provide enough room for further litigation.

    “I think there will be a significant amount of litigation over the question of what employers or activities are incentives to not take rest periods,” he said.

    Mr. Anderies agreed that the ruling didn’t eliminate that possibility, but said a key difference is the overall policy that the ruling creates on a practical side versus individual employers possibly violating the law.

    “There will be factual disputes, but this is based on policies,” he said. “Do I think attorneys and litigants are going the make the same arguments in different forms? Absolutely.”

    He also noted that certain industries have certain rules that may not be as applicable.

    “Everyone hates the response ‘It depends,’ but it does. It depends on certain industries and certain facts.,” he said.

    Both Mr. Anderies and Mr. Rybicki said employers should look at their policies and adjust them as needed.

    “Just because it’s a favorable ruling, employers still need to have a handbook and have to affirmatively assure employees of the policies,” Mr. Anderies said.

     

     

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