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Recent developments in wage and hour law may interest a number of employers.

Oregon law requires employers to provide hourly nonexempt employees who work a shift of five hours or longer a 30-minute uninterrupted meal break.聽But there has been some debate about what it means to 鈥減rovide鈥� a meal break.

There are two schools of thought on the issue.聽On the one hand, there is the 鈥渆mployee鈥� perspective that says if an employee performs any work during a break, then the employer has failed to provide the break.聽Under this view, even if the employer has a policy that employees are not to perform work during the break, has instructed the employee not to work and does not know the employee is performing the work, it still could face significant liability if the employee in fact performs any work.

On the other hand, there is the 鈥渆mployer鈥� view that it is impossible for employers to ensure that every single employee takes a break; rather, employers can ensure only that the break is available to each employee.

Recently, in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court sided with the employer view.聽The facts of Brinker show why this decision is significant and could impact Oregon employers.

The defendant in the case was a company that owns and operates numerous restaurants throughout California.聽The employees who sued the company were current and former hourly nonexempt employees at one or more of the company鈥檚 restaurants.

Like Oregon鈥檚 law, California鈥檚 requires employers to 鈥減rovide鈥� breaks to its employees. Regarding the issue of meal breaks, the employees proposed a class that would include all current or former employees who worked one or more work periods in excess of five consecutive hours without receiving a 30-minute meal period during which the class member was relieved of all duties, from and after Oct. 1, 2000.

The 鈥渕eal break鈥� subclass included about 60,000 individuals.聽Naturally, among those 60,000 people there were a variety of reasons why any given person did or did not take a meal break on any given day.聽However, the employees contended that class treatment was appropriate, and computer shift records maintained by the company could be used to identify violations and establish classwide liability.

The company argued that a meal period subclass should not be certified because an employer is obliged only to make meal breaks available and need not ensure that employees take such breaks. The company asserted that it had complied with its legal obligation to make meal breaks available, and that many employees took those breaks. And inquiries into why particular employees did not take meal breaks raised individual questions precluding class treatment.

The court agreed with the company. It held that the law requiring that an employer 鈥減rovide鈥� a meal break only requires that the employer make the break available 鈥� that is, relieve the employee of all duty for the designated period 鈥� but not ensure that the employee performs no work during the break.

In fact, the court found that the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.

However, this does not mean that just having a policy is enough.聽The Brinker court did clarify that there must be a 鈥渂ona fide鈥� break.聽That is, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform work during their breaks.

So as a practical matter, what does the Brinker decision mean for Oregon employers?聽It means that employers with good policies and established practices to enforce those policies may be able to avoid individual and class action liability for meal break violations.

Before Brinker, employers were vulnerable to the rare but real unscrupulous employee who manipulated the flexibility granted to use breaks to generate liability.聽Now, an employer may be able to avoid paying huge sums in a class action lawsuit if it can show that it gave all employees the opportunity to take a meal break regardless of whether employees actually worked during those breaks.

Some critics have decried the Brinker decision as the end of all meal break class actions. While that conclusion may be overstated, the decision certainly is a win for employers and places limits on their liability.

So, the interesting question for Oregon employers is whether Oregon courts will follow the lead of their southern counterpart and follow this practical interpretation of the law.聽We will keep our eyes open for new developments in this ever-challenging area of the law.

Laura Salerno Owens is an attorney with Barran Liebman LLP. She provides compliance advice to employers and represents management in employment law litigation. Contact her at 503-276-2111 or at [email protected].