By John R. Giovannone and Brandon R. McKelvey

When the California Supreme Court issued its landmark decision in Brinker last year, employers were excited about the apparent legal clarity it offered in the area of meal and rest breaks.  We finally had our explanation of what an employer must do to “authorize and permit” meal and rest breaks, as Brinker succinctly declared:  “an employer is obligated only to ‘make available’ meal [and rest] break periods, with no responsibility for whether they are [actually] taken. [But] the employer is not obligated to police meal [and rest] breaks and ensure no work thereafter is performed.” 

In Brinker’s immediate wake, employers could feel confident in their meal and rest break rule compliance, so long as they (a) relieved employees of all duty, relinquished control and permitted them a reasonable opportunity to take breaks and (b) did not impede or discourage employees from taking breaks. 

But now, the breadth of Brinker’s clarity is under attack.  In this blog series, The Battle After Brinker, we will explore the current controversy over Brinker and what it means.  Since Brinker was decided, the battleground has shifted from the text of the Wage Order to the text of Brinker’s explanation.  While we now know that the employer’s duty is not to police breaks so as to ensure that they are actually taken, disputes can still arise over the meaning of an employer’s duty to make breaks available and the ramifications of that duty on the employer’s break policies and on the viability of meal and rest period class actionsPlaintiffs’ lawyers are coming up with new theories and dressing up Brinker in scary new costumes in an attempt to revive the meal and rest period class action frenzy of the early 2000s.  And at least a few California appellate courts seem to be buying into the disguise and spooking employers everywhere.  In the first blog of this series, we address one of the recent appellate court decisions of this ilk.  As we will relay in future blog posts, the news is not all scary.  As Halloween season turns to the Thanksgiving season, we will post on cases to be thankful for.  But for now, let’s lower the lights and enter the haunted house of the recent Benton v. TNS decision. 

Should You Be Scared By Benton v. TNS? 

Earlier this month, and just in time for Halloween, the Benton v. TNS decision raised new scares regarding the future of meal and rest break class action litigation by reversing and remanding a trial court order that had denied class certification to a large class of telecommunication workers. 

The fact pattern underlying Benton was quite ghoulish itself.  Benton and other plaintiffs sued TNS, a telecommunications company, alleging that a class of cell phone tower technicians were denied meal and rest periods.  The cell phone tower technicians, however, were not your typical employees.  The technicians were workers provided by many different recruiting companies and they performed largely unsupervised installation, maintenance, and repair work on TNS’s cell phone antenna equipment throughout California.  Plaintiffs argued that TNS was arguably the employer of the technicians and all the temporary staffing companies were arguably co-employers as well. 

The trial court denied class certification on the basis that there were too many individualized issues because some of the staffing companies that provided the technicians to TNS had meal and rest period policies and there was evidence that many technicians knew about their ability to take breaks and were actually taking meal and rest periods. 

What is scary about Benton is that the appellate court reversed and remanded the trial court, suggesting the case should be certified despite the fact that (i) many workers in the class had been permitted to take lawful meal and rest breaks throughout the class period as they worked in the field with minimal supervision, and (ii) many workers had also been subject to various lawful meal and rest period policies of the staffing companies that provided workers to TNS. 

Wait, how could such a class be certifiable? 

Undeterred by evidence that many workers in the class knew their meal and rest period rights and actually took meal and rest periods, the Court of Appeal held that the class could be certified on Plaintiffs’ theory that TNS violated wage and hour requirements by failing to adopt a policy authorizing and permitting its technicians to take meal or rest break periods.  The theory was that TNS, as a co-employer, was obligated to implement procedures ensuring that technicians received notice of their meal and rest period rights and were permitted to exercise those rights. 

In other words, according to Plaintiffs’ theory, TNS could be potentially held liable as a joint/co-employer for meal and rest period violations if it did not have a compliant meal and rest period policy and if it did not ensure that technicians received notice of that policy.  According to Plaintiffs, this class theory was viable, even if TNS’s fellow joint/co-employers did have a policy and were independently providing meal and rest periods to the technicians. 

The Court of Appeal essentially bought this theory as it found that inquiries into the validity of staffing companies’ policies would not be relevant absent evidence that (a) TNS knew of the staffing companies’ break policies, (b) required staffing companies to adopt break policies, or (c) required staffing companies to “notify contractor technicians of their meal and rest break rights.”  Accordingly, the Court of Appeal remanded the matter to the trial court to consider whether the plaintiffs’ absence-of-a-formal-policy and failure-to-ensure-notice-of-rights theories were amenable to class treatment. 

This interpretation of Brinker is scary.  But to keep things in perspective the Benton case is a unique case that will be distinguishable from most, if not all, other meal and rest period cases that do not involve joint/co-employers.  Nevertheless, the suggestion that failing to adopt a formal policy authorizing meal and rest breaks (even where the workers know their rights and actually take breaks) can form the foundation for a class action is frightening in and of itself. 

Is a “formal” break policy required by law in California? 

The answer is no.  The only policy employers are required by law to have in California is an anti-harassment policy.  One can search the entire Labor Code, all the Wage Orders, and the case law (including Brinker) and find that nowhere is there a proclamation that an employer is required to have a formal break policy. 

In Benton, TNS argued that there is no legal requirement that an employer maintain a break policy or that an employer ensure that each of its employees know about it.  The Court of Appeal, however, side-stepped this argument, saying that the argument “goes to the merits of the parties’ dispute” and should be avoided at the certification stage. 

Workplace Solutions:  You’ve been spooked, so what do you do now? 

First, you retreat home, eat some Halloween candy, and chill out.  Second, you should consider whether your company should take additional steps to protect itself from opportunistic class actions that allege your company did not have a “formal policy.” 

Ask yourself does your company have a uniform, facially valid “formal” break policy stating the substantive break rights clarified in Brinker? Examine your policy again and if you are unsure whether your policy is compliant or “formal” enough then seek legal counsel on this issue.

Next, ask yourself, do my employees know about the policy? You may want to consider meal and rest break policy training.  Documented break training, while perhaps a belts-and-suspenders approach, could potentially help you avoid a class action. 

Then, ask yourself, how do I prove that my employees know about the policy? Online break policy training with digital acknowledgements via the company intranet is one way.  Live presentations with attendance sheets akin to classic harassment training is another way.  Stand-alone signed policy acknowledgements are yet another way.  And acknowledgments or attestations that appear on employee timecards is another still. 

Up Next:  In the next part of our blog series, we will explore other post-Brinker decisions and reveal additional Workplace Solutions for meal and rest period compliance.