In a blog update from the Epstein Becker Green legal blog yesterday, August 5, 2019, Kevin Sullivan wrote that the 9th Circuit has asked for clarification of the standing Wage and Hour Division policy on California Meal and Rest periods. The US Court of Appeals for the 9th Circuit asked the California Supreme Court to clarify with two questions in response to growing numbers of wage-hour class action lawsuits, in particular, a case filed last week: Cole v. CRST Van Expedited, Inc. (https://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/01/17-55606.pdf ).
Here are the two questions asked:
- Does the absence of a formal policy on meal and rest breaks violate California law?
- Does an employer’s failure to keep records of meal and rest breaks taken by employees create a rebuttable presumption that the breaks were not provided?
What is being challenged via the questions is whether California Employers should be held accountable to more than just posting a wage order that states they have a duty to provide but not police breaks. Are they required to provide and follow a formal policy? And should they be required to keep track of breaks? What are the presumptions if they do not? We will have to wait and see what the California Supreme Court decides.