Daily Journal Publishes Gary McLaughlin, Jonathan Slowik Article on 9th Circuit Meal-and-Rest-Break Questions
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“High court unlikely to stray far from Brinker,” an article by Akin Gump labor and employment partner Gary McLaughlin and counsel Jonathan Slowik, has been published by Daily Journal.
The article discusses Cole v. CRST Van Expedited, Inc., a matter in which the 9th U.S. Circuit Court of Appeals certified two questions regarding meal and rest breaks to the California Supreme Court (CSC).
The questions—“Does the absence of a formal policy regarding meal and rest breaks violate California law?” and “Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?”—the authors note, “have perplexed litigators and courts alike.”
Regarding both questions, the answers have largely been provided in what McLaughlin and Slowik characterize as “the seminal meal and rest break case,” Brinker Rest. Corp. v. Superior Court, a landmark matter decided in 2012 in which Akin Gump represented Brinker International (learn more here).
On the first question, employers’ break responsibilities toward employees can be satisfied without a formal policy, and, the authors write, “Different approaches to providing breaks may be appropriate in different circumstances.”
On the second question, the rebuttable presumption regarding meal breaks comes from Brinker’s concurring opinion, in which Justice Kathryn Werdegar opined that “[i]f an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.” However, they write, only one other justice joined Justice Werdegar’s concurrence, so “a 5-2 majority of the court agreed no such presumption arises from time records alone.”
For these reasons, the authors note that it is unlikely that the CSC will hold that a lack of a formal policy itself establishes a violation of law or adopt a presumption, solely on the basis of the absence of break records, that the breaks were not taken. McLaughlin and Slowik write that “[t]his prediction is consistent with the Courts of Appeal,” noting instances supporting this assertion.
They conclude by stating that the 9th Circuit’s “inclusion of ‘rest breaks’ in its certification is somewhat puzzling because there does not appear to be any other case law considering a rebuttable presumption regarding rest break violations” and that, were the CSC to hold that a failure to record rest breaks “gives rise to a rebuttable presumption that they were not provided, it would upset the expectations of employers statewide with no warning.” They write that it is “unlikely” the court would take an “unprecedented position” such as this.