Meal and Rest Breaks

CA Supreme Court Denies Attorney’s Fees For Meal And Rest Break Claims

CA Supreme Court Denies Attorney’s Fees For Meal And Rest Break Claims

On the last day of April, the California Supreme Court issued its second significant decision of the month concerning meal and rest break claims in California. Like the Brinker v. Superior Court decision, issued on April 12, 2012, the Kirby v. Immoos Fire Protection, Inc. case is favorable to California employers.

In Kirby, Plaintiffs alleged seven causes of action in their Amended Complaint, the sixth of which alleged the failure to provide rest breaks as required by California Labor Code Section 226.7. At the trial court level, in February 2009, Plaintiffs’ dismissed their rest break claim, and in April 2009, Defendant filed a motion to recover attorney’s fees under California Labor Code Section 218.5 for having prevailed on the rest break claim. The trial court eventually ordered Plaintiffs to pay nearly $50,000 in fees to Defendant. Plaintiffs appealed, but the Appellate Court sided with the trial court. The California Supreme Court, however, overturned the lower-court’s order and determined that no party is entitled to recover attorney’s fees even if that party prevailed on meal and rest break claims.

Though this particular Defendant lost an award of approximately $50,000, most defendants in any such future claims can view this case as very favorable. Essentially, this decision tells potential plaintiffs, and their lawyers, that even if they prevail on such claims, they will not be entitled to attorney’s fees on such claims. This decision reduces some of the leverage plaintiffs had regarding such claims during litigation and especially during settlement negotiations. Further, most defendants rarely pursued attorney’s fees even if they prevailed on such claims anyway since they were rarely awarded, and even if awarded, prevailing defendants knew it was unlikely they could collect any money from the typically asset-poor plaintiff(s) who bring such claims. Thus, while this Defendant may have lost this battle, it won the war on behalf of other defendants concerned about courts awarding attorney’s fees to plaintiffs who prevail on meal and rest break claims.

This case likely will also influence how plaintiffs pursue such claims in the future and will encourage plaintiffs to bring other claims where attorney’s fees can be awarded under the Labor Code. The decision may also drive more plaintiffs to pursue meal and rest break claims via the California Labor Commissioner’s office which is generally faster and cheaper than litigating in court.

For those of you who are interested in Court’s analysis of the competing Labor Code sections, a short summary is here: The Court pointed out that Labor Code Section 218.5 requires the awarding of attorney’s fees to the prevailing party “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” The Court further noted that this provision awards fees to the prevailing party whether it is the employee or the employer; it is a two-way fee-shifting provision. However, Labor Code Section 218.5 “does not apply to any action for which attorney’s fees are recoverable under” California Labor Code Section 1194, which provides that employees who prevail in any action for any unpaid “legal minimum wage or . . . legal overtime compensation” are entitled to recover attorney’s fees; it is a one-way fee shifting provision.

According to the Court, the first question was whether attorney’s fees were recoverable under Labor Code Section 1194. Since rest breaks do not constitute a “minimum wage,” the Court found that attorney’s were not available under Labor Code Section 1194.

Next, the Court considered whether attorney’s fees were recoverable under Labor Code Section 218.5. The Court found that rest breaks do not constitute wages of any kind, and thus, Labor Code Section 218.5 was not applicable to the claim. In analyzing the various sections of the Labor Code, the Court also examined their legislative histories. And, while the Court found that no party is entitled to attorney’s fees for such claims, it noted that the legislature could easily broaden the Labor Code in such situations.

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CA Employers Need Not Force Employees To Take Meal Breaks

CA Employers Need Not Force Employees To Take Meal Breaks

You don’t need to force your employees to take meal breaks.

Generally, the news is good for employers. Just a few hours ago, in Brinker Restaurant Corp., v. Superior Court, the California Supreme Court provided long-awaited answers to some important and hotly litigated meal and rest break issues in California for non-exempt employees. Specifically, the Court clarified when meal and rest periods are required, and what an employer must do to provide meal periods (the Court also addressed class certification requirements as well). Here is some of the more important language from the opinion regarding meal and rest breaks:

Meal Breaks:

“An employer‟s duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”

“On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer‟s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).”

“Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”

WHAT THIS MEANS: Employers need not “ensure” employees take a meal break. Instead, employers should relieve workers of all duties, and not impede employee’s ability to enjoy an uninterrupted 30-minute meal period. If the employee voluntarily chooses to work during the meal period, the employer is not in violation of the law unless the employer pressured the employee to work during the meal period, or undermined a policy providing for such meal periods.

The Court also clarified that the law requires “a first meal period no later than the end of an employee‟s fifth hour of work, and a second meal period no later than the end of an employee‟s 10th hour of work.” The Court rejected the plaintiffs’ argument that the law imposed additional timing requirements.

Rest Periods:

“Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”

“Construing the plain language of the operative wage order, we find no such requirement [that employers have a legal duty to permit their employees a rest period before any meal period] and agree with the Court of Appeal, which likewise rejected this contention.”

WHAT THIS MEANS: For example, if an employee works an 8-hour shift, the employee is entitled to two 10 minute rest periods. Generally, “one rest break should fall on either side of the meal break.” And, the rest periods should be provided in the middle of each work period “insofar as practicable.”


(1) Employers should make sure their Employee Handbooks and policies reflect that the company provides the requisite meal and rest periods to eligible employees, and the circumstances for, and timing of, each period.

(2) Employers should make sure that managers/supervisors are trained properly to deal with scheduling non-exempt employees’ work shifts and breaks. Managers/supervisors should also be trained to ensure that they are not violating company policies or otherwise making an employee believe that the employee should or must perform work during a meal period.

(3) Employers should also make sure, as always, to keep accurate and updated records of when each non-exempt employee clocks in/out for each shift, and clocks in/out for each rest and meal period. This step requires training managers/supervisors, and good communication with each non-exempt employee.