Given the prevalence of wage-hour class actions filed against California employers, the Ninth Circuit Court of Appeals from time to time asks the California Supreme Court to clarify certain California wage-hour laws. Last week, the Ninth Circuit asked again in Cole v. CRST Van Expedited, Inc., seeking clarification on the following two questions:

1. Does the absence of a formal policy on meal and rest breaks violate California law?

2. 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?

As we reiterated last week in our Time Is Money: A Quick Wage-Hour Tip on … California Meal and Rest Period Requirements, more than seven years ago in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court held that, generally, an employer’s duty is to “provide” meal periods; there is no duty to ensure they are taken. “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,” as the Court explained. The Court further opined that “the employer is not obligated to police meal breaks and ensure no work thereafter is performed.” Off-duty rest periods must also be “provided.”

The Ninth Circuit’s first certified question—whether a “formal policy” must be adopted—suggests tension between an employer’s duty to “provide,” and the absence of any duty to “ensure” the taking of, meal periods. A number of district courts, including the district court in Cole, have held that an employer satisfies its meal and rest period obligations by posting a copy of the applicable Industrial Welfare Commission wage order in a conspicuous location frequented by employees during working hours. That the Ninth Circuit has certified this issue for the California Supreme Court to decide suggests that the Ninth Circuit believes something more than posting the wage order may be required.

If the Court were to decide that a formal policy is necessary, it could result in somewhat absurd consequences. That is, if a “formal” policy must be set forth in writing, but an employer has had a longstanding practice where the meal and rest periods that employees have taken satisfy the nature, number, and timing requirements set forth in Brinker, would that result in a violation? Depending on how the Court rules, employees who have taken all required breaks may, in theory, still be able to pursue damages.

Attempting to answer the second certified question—whether 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—involves separate analyses for meal and rest periods. Regarding meal periods, the Ninth Circuit recognized Justice Werdegar’s concurrence, joined by Justice Liu, in Brinker, opining that “[i]f an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.” Because concurring opinions are not binding precedent, courts have treated Justice Werdegar’s concurrence differently, either following or disregarding it. With a slightly different makeup on the California Supreme Court today as compared to when Brinker was decided, it is safe to assume that Justices Werdegar and Liu will vote in favor of adopting this presumption. Such a presumption, however, would appear to be inconsistent with Brinker’s conclusion that an “employer is not obligated to police meal breaks.” That is, if an employee fails to take his or her meal periods despite an express policy providing for them, employers may inevitably be compelled to police meal periods or face a lawsuit where it would be the employer’s obligation to show how a meal period was, in fact, provided for each instance that an employee’s time records reflect no meal period.

Concerning the potential adoption of a presumption that no rest period was provided if one was not recorded, the Ninth Circuit appears to have overlooked how there is no California law obligating employers to keep records of rest periods. And the typical presumption analysis applies only when an employer fails to maintain records expressly required by law. Absent some legal gymnastics, there would appear to be little basis to hold that an absence of rest period records creates a rebuttable presumption that rest periods were not provided. Nevertheless, the Court has surprised employers in the past, and there seems to be at least some support among the justices for creating this presumption.

The California Supreme Court’s anticipated answers to these questions may have a huge impact upon employers in California, regardless of industry or occupation. Should the Court rule, for instance, that an employer may not rely on merely posting the applicable wage order to notify employees of their meal and rest period rights, certain employers will need to change their practices going forward and adopt a formal written policy, along with facing class action lawsuits for past practices where no formal policy was in place.