A Meal “Break” For Employers

Posted by: Joy P. Waltemath, J.D. on Thursday, April 12, 2018 at 12:00:00 am

A California appeals court confirms and clarifies that employers need only provide meal breaks, not “ensure” employees take them. In Serrano v. Aerotek, Inc the court found the staffing company had satisfied its own duty to provide meal periods by:

1.    having adopted its own lawful meal period policy,
2.    contractually requiring its client to comply with all applicable laws, and
3.    instructing its employee to immediately report to it if she was being prevented from taking authorized meal periods.

The court was not convinced that the staffing company had a duty to take affirmative steps to ensure that its client effectively implemented the meal period policy, a position the court found at odds with Brinker, which held that an employer is not required to "police" the taking of meal breaks. Here the staffing company not only required the client to comply with the law, it provided its own meal period policy to temporary employees and trained them on it during orientation, and the policy required them to notify the staffing company if they believed they were being prevented from taking meal breaks.

The temporary employee sued Aerotek, Inc., a staffing company that placed her as a temporary employee with its client, Bay Bread, alleging a failure by both to provide meal periods as required under Labor Code sections 226.7 and 512. The trial court granted summary judgment to Aerotek, determining that Aerotek satisfied its own duty to provide meal periods and was not liable for any meal period violations by its client. The appeals court agreed.

Who is responsible? Aerotek’s contract made Bay Bread responsible for controlling, managing and supervising the work the temp employees were assigned to perform under the contract. Bay Bread contractually agreed to "comply with applicable federal, state, and local laws." Both Aerotek and Bay Bread had meal period policies that appeared to conform to state law, but Bay Bread’s policy applied to its own employees, not Aerotek’s employees. Bay Bread set the schedules that Aerotek temporary employees worked and managed their shifts, including their taking of meal breaks. Every Aerotek temporary employee who worked at Bay Bread received the Aerotek employee handbook and went through an orientation where Aerotek representatives conducted training on Aerotek’s employment policies, including its meal period policy.

Client determined the breaks. Bay Bread said it determined when Aerotek temporary employees took their meal breaks by both ensuring "that everyone got an uninterrupted meal break by the time five hours of their shift elapsed" and by "workflow," for example, "when things needed to come in and out of the oven. We can’t go take a break and let the cookies burn." Aerotek employed an account manager who came onsite twice a day for about 10-15 minute "walk-throughs," although he said it would have been impossible to monitor whether and when Aerotek temporary employees took their meal breaks. From testimony of representatives of each, it appeared that neither Bay Bread nor Aerotek were monitoring temporary employees for meal period violations. When asked via interrogatory to specify the facts supporting her claim that Aerotek "in any way prevented [her] from taking lawful meal periods," the employee said she was "unaware of any actions Aerotek affirmatively took to ‘prevent’ [her] from taking meal breaks within the first five hour[s] of work" but "Aerotek failed to ensure that... Bay Bread implemented appropriate meal break policies."

No requirement to "police" meal breaks. Brinker Restaurant Corp v. Superior Court of San Diego County, the California Supreme Court’s leading decision on the scope of an employer’s duty to provide meal periods, held that "an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work." An employer is not required "to police meal breaks and ensure no work thereafter is performed." As such, the trial court determined that Aerotek had sufficiently shown that it provided its employee with compliant meal periods, based on evidence that it "adopted a lawful meal period policy" she "repeatedly acknowledged," and her admission that "she [was] unaware of any actions taken by Aerotek to prevent her from taking meal periods." Aerotek also required Bay Bread to comply with all applicable laws and instructed her to immediately report if she was being prevented from taking authorized meal periods.

Staffing company has no affirmative duty to ensure its client enforced staffing company’s policy. The appeals court saw no reason to differ, finding the employee had no authority to support her position that Aerotek had a duty to take affirmative steps to ensure that Bay Bread implemented Aerotek’s meal period policy. Stressing that it was not implying that a temporary staffing agency met its duty and immunized itself from liability by merely promulgating a compliant meal period policy without regard to a client’s implementation of it, the appeals court pointed to undisputed evidence that Aerotek did do more: Its contract required Bay Bread to comply with applicable laws; Aerotek provided its meal period policy to temporary employees and trained them on it during orientation; and its policy required those employees to notify Aerotek if they believed they were being prevented from taking meal breaks. The employee never notified Aerotek of any meal break problems.

Failure to investigate not actionable. Although the employee argued that Aerotek’s failure to review time records and investigate whether meal period violations were occurring was a breach of its own duty to provide meal periods, the court found no authority to suggest that Aerotek could not fulfill its duty to provide meal breaks without investigating whether those breaks were being taken. It rejected her contention that Aerotek had actual or constructive knowledge that she was not taking her meal breaks within five hours of starting work, and that itself would establish liability—because Brinker makes clear that such knowledge does not establish liability. As such, there was no issue of material fact as to whether Aerotek fulfilled its own duty to provide meal periods.

No vicarious liability, either. The employee tried various other arguments, all without success. She claimed that vicarious liability existed based on the nondelegable duty doctrine (an exception to the common law rule that "a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work"). That simply did not apply here; there was no dispute that, as her direct employer, Aerotek had a duty to provide her with meal periods, and Aerotek didn’t claim that it delegated that duty to Bay Bread. But even if it had, there was no authority suggesting the doctrine allowed her to hold Aerotek liable for any failure by Bay Bread to provide meal periods.

Joint employer theory. Her contention that Aerotek was liable for Bay Bread’s violations was essentially based on a theory that Aerotek and Bay Bread were her joint employers. Assuming without deciding that both companies were her employers, that still did not support holding Aerotek liable for a co-employer’s meal period violations, said the appeals court, distinguishing as dicta a footnote from an earlier state appellate court decision, which the court found inconsistent with Brinker anyway. "Brinker does not impose liability on an employer that makes compliant meal periods available even if the employer is aware that its employees are not taking the breaks," it reiterated.

And, whether an employer is liable for a co-employer’s violations depends on the scope of the employer’s own duty under the relevant statutes, not "principles of agency or joint and several liability"—and nothing in the applicable wage order or statutes supported her contention that an employer is liable not only for a breach of its own duty but also for a co-employer’s breach of the co-employer’s own duty. As a result, the court affirmed dismissal of her claims.

The case is No. A149187.


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