Wednesday, December 22, 2010

On the Brinker of Disaster: Give Employees a Break, Will Ya?

Oh, that economics, law, and ethics would perfectly align.  In such a world, employers would not only know the law, but they would follow it scrupulously.  They would not allow the emergence of a corporate structure that encouraged the skipping of rest breaks.  Such enlightened employers would not allow overworked employees to skip or delay their lunches.  These same workers, in an economic climate of layoffs and increased work loads, would not sulk in fear at the thought of insisting on their breaks, nor would supervisors mentally mark for layoff those "slaggard" employees who took breaks. 

Soon, an uncitable decision now on appeal to the California Supreme Court [Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25] will result in a final decision on whether an employer must not only have and follow a rest break and meal break policy in accordance with law, but must also actively police the employee population to assure the breaks are actually taken.  In effect, pre-Brinker, employers were charged with nearly "strict liability" if an employee showed breaks were not taken.  The likely presumption behind a "strict liability" standard is that the employer "permitted" and even encouraged employees to avoid their breaks [or risk adverse performance evaluations or ranking for layoff].

I predict the California Supreme Court will affirm Brinker's rule of lax enforcement.  Courts have a fascination with this term "reasonable" as if human conduct was not only "reasonable" but well intentioned.  In truth, a "reasonable" entrepreneur in a competitive environment will seek greater productivity by various kinds of tactics to encourage employees to work through break times and lunch breaks.  One very simple method is to load everyone down with more work because layoffs have reduced the available resources.  Fear of layoffs itself will be enough to induce both employers and employees to "overlook" the break rules.  Will the California Supreme Court see this larger economic
reality of the workplace?  Is it relevant legally?  If the information is relevant, how do they even have access to that information?  Their "world" is limited to the formal record on appeal.  This limitation illustrates why courts are so limited and ill suited (pardon the pun) to decide matters of social policy. 

Even so, one truth is paramount:  employers are constantly enforcing the rules of the workplace.  The best level of enforcement is not the courts, but at the "front lines" where disputes first arise.  In this situation, a rule that placed the "strict liability" on employers to enforce a break and meal time policy would have two good effects:  1) it would present a bright line rule that would make outcomes clear if the policy was violated and 2) it would reduce the amount of litigation because courts would not be presented with the thorny issue of whether an employer was "reasonable" in tracking a rest break and meal time policy. 

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