An Employers Guide to the Supreme Courts Ruling in Brinker

After nearly four years of anxious anticipation on the part of employers across California, the California Supreme Court issued its ruling in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) (2012) 53 Cal.4th 1004. In its ruling, the Court has clarified the decade long question as to the extent of an employer’s meal period obligations, including the timing of when such breaks are to occur.

The Court’s decision in Brinker covered several different issues, including, among others, rest periods, meal periods and whether off the clock claims can be certified for class action treatment.

The key holdings from the Court’s opinion, which will each be discussed further below, were:

  1. Employers are not required to “police” meal breaks to ensure they are taken by employees. Employers must simply make those breaks available to employees.
  2. Employers are not required to give an employee a meal break every five hours. They simply need to give the employee one meal break at some point during a shift that is longer than five hours but shorter than ten hours in duration.
  3. When an employer has a policy explicitly prohibiting working off the clock, claims of off the clock work are much more difficult to establish for class certification.

The Extent of an Employer’s Duty as to Meal Breaks

Employers do not need to ensure that employees are actually taking their meal breaks, even if they are aware that an employee is working through a meal break, so long as they have provided a meaningful opportunity to make them freely available. As the Court stated, “[a]n employer’s duty with respect to meal breaks…is an obligation to provide a meal period to its employees. The employer satisfies this obligation 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.” Id. at 1040.

The Court stopped short of explaining when an employer has satisfied its obligation to provide a meal break, instead stating, “[w]hat will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.” Id.

Although the Court’s refusal to set forth a specific test to determine whether an employer has complied with its obligation to provide a meal break may likely lead to further litigation in the future, the fact that the Court held that employers are not required to “police” meal breaks to ensure that their employees are taking them will make these types of claims much harder for plaintiffs to maintain in the future.

Employers are not Required to Provide a Meal Break Every 5 Hours.

In a key element of the Court’s ruling, the Court rejected the plaintiff’s claim that an employee is entitled to a meal break every five hours in their shift. Id. at 1042. For example, under the plaintiff’s interpretation of California law, if an employee is working an 8 hour shift and takes their meal break 2 hours into the shift, the employee would be entitled to a second meal break at the 7th hour of the shift. Fortunately for employers, the Court held that the California law only requires that a second meal break be provided if the employee works longer than a 10 hour shift. Id.

Off the Clock Claims Are Difficult to Establish for Class Certification Purposes when the Employer has a Policy Prohibiting Off the Clock Work

The Court found that when an employer has a policy which prohibits off the clock work, then there is a presumption that no off the clock work is taking place. Id. at 1051-1052. This presumption must be rebutted by a plaintiff who must establish that he/she worked off the clock. Since determining whether a specific employee worked off the clock would require the trial court to determine an employer’s liability on an individual basis for each employee, this makes it extremely difficult for off the clock claims to be certified for class actions. Id. at 1052. Based on this reasoning, the Court held that it was proper to deny the plaintiff’s class certification motion as to off the clock claims because Brinker had a written policy that prohibited off the clock work and the plaintiff was unable to produce any evidence which contradicted that policy. Id.


The Brinker decision has clarified some previously uncertain legal issues in favor of employers. Due to some of the clarifications set forth in the ruling, specifically those pertaining to employer obligations with regards to employee meal breaks along with the benefits of employers maintaining written policies prohibiting off the clock work, employers should review their policies and employee handbooks to ensure they are complying with California law.

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