Since the California Supreme Court decided in Brinker Restaurant Corp. that employers must “provide,” but need not enforce an uninterrupted meal period, there has been some debate about what an employer needs to do to ensure that it is “providing” a meal period under evolving California law. Now a California court of appeals has ruled in a different case that the lack of a consistent policy could be a valid reason to allow hundreds of workers to band together as a class and sue their employer for failing to provide meal and rest periods (Benton v. Telecom Network Specialists, Inc., Cal App, Oct. 2013).
In the Benton case, the company used approximately 750 technicians to repair cell towers. These employees were a combination of direct hires and leased employees from a number of different employment staffing agencies. The majority worked with little or no supervision. The plaintiffs sought to certify a class of all these employees under a theory that the company violated California law by failing to have a clear, written meal and rest period policy which was communicated to all those employees, both direct hires and leased. Only the direct hires received a policy from the company. Unfortunately, it said supervisors would schedule meal and rest periods, and didn’t explain when or how often breaks could be taken if working unsupervised.
The company argued that class certification was inappropriate because these employees differed in significant aspects. Some were from staffing agencies that had their own written meal and rest period policies. Some were aware of the right to take meal and rest periods and actually took those meal and rest periods. The question then became whether the absence of a clear, consistent policy by the company alone could be sufficient to certify an entire class. In this case, the court said yes. This is a critical development, because the court’s decision means it is insufficient for employers to only give employees the liberty to take meal and rest periods While the merits of this case have not yet been determined, there is no doubt that the fear of a class action is making this a very expensive case for the company.
Tips: The duty to “provide” meal and rest periods begins with a clearly written and communicated policy. Such a policy, combined with a practice of affording employees the opportunity to use offered meal and rest periods, is the cornerstone of the employer’s current obligations under California law. This obligation applies whether your employees are direct hires or jointly employed by a staffing agency. We recommend that you distribute your policy to affected workers, and document that they received it. You should also cover it during the new hire orientation process, and retain documentation that you did so. For Vigilant members in California who haven’t yet talked with us about updating their handbooks in light of this new development, we urge you to do so. To learn more about your responsibility as an employer to provide meal and rest periods, contact your local Vigilant representative.
The obligation to “provide” meal and rest periods may require an affirmative policy authorizing and explaining how to take those breaks, according to a recent decision from a California court of appeals.
