The question of what a company that serves meals to customers at such popular restaurant chains as Chili's Grill & Bar and Romano's Macaroni Grill should be doing to "provide" its employees with meal breaks is now at the center of a major wage-hour legal battle pending before the California Supreme Court.
California labor regulations require that "No employer shall employ any person for a work period of more than five hours without a meal period of not less than 30 minutes." Because the term "employ" means "suffer or permit to work," say six employees of restaurant operator Brinker International and labor groups who support them, the employer must take "affirmative steps" to ensure that the employee takes a meal break.
But in 1999, the California Legislature passed a law that slightly modified the regulatory language.
"An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes," stated the law, Assembly Bill 60.
Brinker, which operates Chili's and Romano's, along with other California employers, has taken the verb "provide" to mean it needs only to make meal periods available to employees. And as long as workers have an opportunity to take a meal break, they should not be allowed to sue employers for meal-break violations.
An appeals court sided with Brinker in 2008, finding that "employers need not ensure meal breaks are actually taken, but need only make them available." It also took an employer-friendly view of rest-break requirements. The state Supreme Court agreed to review the case, and its decision is expected in late January.
"The Court of Appeal's holdings present a very real threat to the health and safety of not only the impacted workers, but also the public—in other words, everyone whom our meal period and rest break laws were intended to protect," the plaintiffs argued in a brief.
Meal period laws vary from state to state. But states other than California have been wrestling with how far employers should go in policing meal periods and rest breaks. Earlier this year, a Washington state appeals court interpreted a law that says "Employees shall be allowed a meal period of at least thirty minutes" to mean that employers have a "duty to ensure that employees take meal periods and rest breaks."
The six named Brinker plaintiffs represent a proposed class of as many as 60,000 current and former company workers. They sued in 2004, alleging that Brinker pervasively failed to relieve employees of all duty so they could take meal periods. "Oftentimes, I would be required to clock out for a meal period but continue serving my tables because there were no other employees available to cover my job duties," one employee testified.
Companies put "pressure on workers to skip breaks because of understaffing to cut labor costs," says Kimberly A. Kralowec, a San Francisco lawyer who represents the Brinker employees.
Class actions over alleged meal-period violations have become common in California since Labor Code Section 512 was enacted in 1999. The use of the ambiguous term "provide," labor lawyers say, has encouraged employers to disregard the mandatory compliance standard of the Industrial Welfare Commission regulations—which dates back to 1916—and shirk their meal-period obligations. Employers, for their part, contend that Section 512 allows them some flexibility and they are not required to strictly monitor meal breaks.
"Noticeably absent is any language compelling an employer to ensure that an employee takes every provided meal period notwithstanding the employee's desire to shorten or skip it (for example, to work during a period of heavy tipping, or to leave early at the end of the day for a dentist's appointment, a meeting with a child's teacher, or for any other personal reason)," Brinker argued in a brief.
During a hearing in November, California Supreme Court judges focused on the exact language of Section 512. "The fact that the Legislature chose to use the word 'provide,' in my view that is important," Justice Joyce Kennard said. "The presence of the word 'provide' in the statutory provision ... is completely lacking in the wage order."
"The Legislature intended to codify the wage orders," Kralowec responded.
Some of the judges suggested that under the plaintiffs' logic, an employer would have to discipline a worker who disobeys a supervisor's order to take a meal break.
"How is that protective of the worker?" Justice Marvin Baxter asked.
"If the employee refuses a directive, they should invoke their system of progressive discipline, just like they would if the employee insists on working overtime," Kralowec replied.
But the plaintiffs' position has drawn support from the author of Assembly Bill 60.
"The folly of [interpreting] Section 512 as narrowing employee's workplace rights," former Assemblyman Wally Knox wrote the Supreme Court, "is that it makes utterly no sense that the Legislature would add a provision to a bill that expands employee rights by changing the wording of the wage orders it intended to codify so as to contract employee rights."
Matthew Heller is a freelance writer and editor based in Los Angeles. To comment, email firstname.lastname@example.org.