Unprecedented: Could Lack of Break Policy Violate Law?

Judges typically decide lawsuits by looking to precedent: How have other courts ruled on similar issues in the past? But on occasion, a litigant raises an entirely new issue that has no direct precedent. When this happens, the court can ask the California Supreme Court how it would rule on the particular set of facts (this is called “certifying the issue”). The lawsuit is then put on hold until the Supreme Court issues its ruling.


Earlier this month, the Ninth Circuit Court of Appeals certified two questions relating to meal and rest breaks to the California Supreme Court — the answers to which will impact not only the litigants to the Ninth Circuit case, but all California employers with nonexempt employees (Cole v. CRST Van Expedited (9th Cir. No. 17-55606 8/1/19)).


Driver Skipped Meal Breaks


James Cole worked for CRST Van Expedited, Inc. (CRST) as a truck driver. Cole testified that CRST let its drivers determine their daily schedules, including how many miles to travel and when to take meal and rest breaks. He asserted, however, that drivers were expected to keep to a rigorous pace: CRST monitored its trucks via GPS to ensure that they “[kept] the wheels rolling,” and driver payment depended on timely deliveries.


Cole also pointed out that CRST’s driver handbook stated that drivers must average 50 miles per hour, “including all stops for fuel, driver swaps, meals, breaks, showers, weigh stations, traffic, etc.”


Cole therefore alleged that even though CRST never instructed him not to take meal and rest breaks, the midday time away from work would have prevented him from keeping up with CRST’s demands. He sued CRST, alleging that it failed to provide its drivers with meal and rest breaks as required by California law. He also asked the court to certify a class of other truck drivers who had similarly been denied breaks or premium pay.


Unspecified Rules


CRST had no written policy on meal and rest breaks and never scheduled specific breaks for its drivers. A CRST manager testified that drivers were instructed not to drive for more than five hours without taking a break, and that they were to take breaks whenever they deemed appropriate. Managers also testified that California’s meal and rest break requirements were posted on a bulletin board in CRST’s main office.


Other CRST drivers testified that it was up to them to take breaks whenever they wanted. Some planned out meal periods for longer drives, others took only 10-minute breaks on a sporadic basis. One driver stated that her dispatcher cautioned her not to take a break if she was behind schedule.


Provide, Not Ensure


The trial court granted judgment in favor of CRST. It noted that Brinker Rest. Corp. v. Superior Court (Brinker) held that an employer satisfies its meal break obligations “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.”


Under that standard, the trial court held that CRST satisfied its obligation to provide meal and rest breaks by allowing its drivers a reasonable opportunity to take required breaks; further, it noted that sufficient evidence demonstrated that CRST encouraged its drivers to take breaks.


The trial court additionally refused to certify class action status for Cole’s case, since he could not prove that CRST had an unlawful policy that impacted a class of drivers.


Key to Appeal: Lack of Policy


Cole filed an appeal to the Ninth Circuit, asserting that CRST didn’t meet its legal obligations by simply telling drivers to take breaks whenever they could. He argued that the Labor Code additionally required CRST to adopt a written policy on breaks, and to record meal and rest breaks. Because CRST did neither of these things, he argued, his case should not be dismissed.


The Ninth Circuit reviewed similar cases brought before California courts and determined that no relevant precedent controlled Cole’s issues. It therefore asked the California Supreme Court to answer two specific questions:


  1. Does the absence of a formal policy regarding meal and rest breaks violate California law?
  2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?


Cole’s case is now suspended pending responses to these questions from the California Supreme Court. There is no expected timeframe for the court’s decision, but CalChamber will provide updates as the case develops.


Lessons for Employers


Providing nonexempt employees with a meal break is an affirmative duty on the part of the employer; follow these tips to help you avoid costly litigation.


  • Establish a written meal and rest break policy and train all nonexempt employees to take meal breaks before the end of the fifth hour of work;
  • Consider establishing a schedule for employee meal and rest breaks;
  • Train employees to accurately track all hours worked; and
  • Inform employees who are responsible for their own schedules that those schedules must include timely meal and rest breaks.

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