On the Brink With Brinker: Snacking Within Legal Guidelines.

If there is an equivalent to “viral” in the legal writing community, it would be the coverage given to the case of Brinker Restaurant Corp. v. Superior Court decided by the California Supreme Court on August 12, 2012. This may be as close as lawyers come to experiencing Internet hysteria.

To join or not to join? I have decided to join, but somewhat less hysterically.

This decision would matter to you if you were one of 60,000 employees working for the Brinker Restaurant Group. If you are one of the legion of white-collar exempt workers it may not matter much at all. Most of the “buzz” was generated by class action lawyers on both sides of the Bar. If you are an attorney who does not generally practice class action, you could easily doze off during the extensive discussion of the 10-hour work shift.

With so much written, I will add a pedestrian point. It has to do with the simple matter of hunger.  A restaurant worker might experience if working back-to-back shifts. Individual hunger pangs might not matter much to class-action lawyers, but they do matter to your waitress or waiter.

Here is where the stomach growl can be heard: a restaurant operator wants his table waiters to be available during peak service hours. In my own experience representing restaurant workers, I learned that the worker herself would prefer to continue working to avoid loss of tips from customers she had served, only to see those customers pay the tip to the waiter taking over her busy tables. Tips are a major source of compensation for restaurant workers.

The operator solution was to require the restaurant worker to begin his or her meal break immediately upon clocking in to work for his or her shift. This creates the odd situation in which one arrives at work, clocks in, and sits down for 30 min. to do nothing.  This was the situation for many of the Brinker workers.

The industrial welfare commission regulations require that the 30-minute meal break be provided after 4 hours and no later than the 5th hour. [Sometimes the employee can work straight through a six hour shift without a break if there is a written disclosure and consent by the employee].

The  “first” meal break rule is satisfied by giving the employee a 30-minute break immediately upon commencing his shift. But now the hunger sets in. It has been 4 ½ hours since the employee ate. The employee now moves into the 2^nd 5 hours of his 9½ hour shift. Should he be expected to work up to an additional 5 hours without a meal break? That is, is the restaurant operator allowed by law to work the employee just short of 10 hours without providing a 2nd meal break in the 5^th to 10^th hour? The California Supreme Court has answered “yes.” 

Restaurant workers or other employees in comparable situations will have to be adaptable. They may find this law an excellent way to lose weight. They may also find inventive ways to prepare snacks for consumption during their break periods. The California Supreme Court implicitly seem to recognize that employees need this “rest” break by also concluding that the 2nd 10 min. rest break must be given between the 6th and 8th hours of work. I suspect that the holding of the Court affirming that an employee can do what ever he or she wishes during his meal and rest break takes into account that most starving employees will choose to eat.

The “hype” surrounding this decision finds both the plaintiff's Bar and the defense Bar spinning the case to assert victory. This scrambling leads me further to believe that the California Supreme Court has done an admirable job of giving something to everybody.  The Brinker decision was reached by a unanimous opinion. Reading between the lines, I believe that the members of the Court understood that there was indeed a great political and economic lobby waiting for the outcome, and that unanimity would give weight and credibility to the Court's opinion. In the meantime I hope that these hard-working Justices remember to have a snack before taking the Bench.  

For a full copy of the decision:  Brinker

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