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June 14, 2013

Written Rest Period Policy Language May Land Employers in Hot Water If It Deviates From California Wage Orders


A California Court of Appeal recently ruled that an employer’s rest period policy may subject the employer to class action liability if the wording of the policy fails to follow the language of the California Wage Orders. Even if in practice, the employer complies with the law and employees receive their rest periods in accordance with the law, a misworded policy, or having no written policy may provide a basis for a class action lawsuit.  While the California Supreme Court’s decision in Brinker brought long sought after clarity as to an employer’s obligation to provide meal and rest periods, the Court’s reasoning on class action certification is now being used to exploit nuances between written policy language and the explicit Wage Order language on meal and rest periods.

Former Security Guard Files Class Action Complaint

Josie Faulkinbury worked as a security guard for Boyd & Associates, Inc. (“Boyd”) from October 2003 to November 2004.  Boyd provides security guard services throughout Southern California to clients including gated residential communities, hospitals, commercial buildings, and retail stores.

Faulkinbury asserted that when hired by Boyd, she had to sign an agreement to take on-duty meal periods, and that while employed by Boyd, Faulkinbury was instructed not to leave her post and that she never took any off-duty rest periods.  Faulkinbury also claimed missed overtime compensation for work performed during the on-duty meal periods.  Faulkinbury, along with another guard, William Levene, filed a class action complaint, seeking to represent not only themselves, but also to certify a class of about 4,000 current and former employees of Boyd on the meal period, rest period, and overtime claims.

The trial court denied Faulkinbury’s motion for class certification, and Faulkinbury appealed. The Court of Appeal initially affirmed the trial court’s order denying certification on the meal and rest period claims. Faulkinbury v. Boyd & Associates, Inc., 185 Cal.App.4th 1363 (Cal. Ct. App. 2010). The court concluded that even if Boyd’s on-duty meal period policy was unlawful, Boyd would only be liable when it actually failed to provide a required off-duty meal period.

Soon after, the Supreme Court granted review of Faulkinbury, but held off from making any final ruling pending its decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012).

Following the California Supreme Court decision in Brinker, the Court directed the Court of Appeal in Faulkinbury to reconsider its decision in light of Brinker.

Based on the reasoning in Brinker, the Court of Appeal changed course and reversed the trial court’s order denying class certification on all three claims: the meal periods, overtime, and rest periods.  The court concluded that Brinker teaches that the court must focus on the policy itself and address the issue whether the legality of the policy can be resolved on a class-wide basis.

Accordingly, the court found that an employer’s liability arises by adopting a uniform policy that violates the wage and hour laws.  Whether or not an employee was able to take the required rest period goes to damages, and the fact that individual employees may have different damages does not require denial of the class certification motion.

On rest periods, to determine if a policy is lawful, the court explained the policy must be measured against the relevant rest period requirements.  The court noted that Brinker clarified that the California Industrial Welfare Commission Wage Orders require employers to provide an employee with a 10-minute rest period for shifts from three and one-half to six hours in length, a 20-minute rest period for shifts of more than six hours up to 10 hours, and a 30-minute rest period for shifts of more than 10 hours up to 14 hours.  The court noted the defendant employers in Brinker had a written rest period policy, applicable to all employees, under which employees were provided only one 10-minute rest period for every four hours worked. The policy was held invalid because it should have provided for a second rest period after six hours. Thus, the court signaled that policies that deviate from the explicit language in the Wage Orders may be susceptible to class action liability.

What This Means for Employers

An employer’s policy that does not closely mirror the wage order language may be susceptible to class action liability, even if in practice, the employer provides meal and rest periods in strict accordance with the law.  Accordingly, employers should review their meal and rest period policies to ensure it complies with Brinker and the Wage Orders—that is:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3½) hours.

Accordingly, the Brinker Court decided that employees should be offered rest periods as follows:

Hours Worked  Ten Minute Breaks
3.5 – 6                           1
6 – 10                            2
10 – 14                          3

Employers that updated their meal and rest period policies following Brinker should take a second look at the policy in light of Faulkinbury.  If the handbook has not been updated since before Brinker, it may signal a good time to review the entire handbook for this and other relevant updates.  While there is no explicit/specific requirement in the law to have a written meal and rest period policy, Faulkinbury holds the lack of such a policy may also expose employers to class action liability even where the underlying practice is in full compliance with the law.  Please contact one of the authors if you would like to discuss review of your handbook or meal and rest period policies.

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