• California Employers Need to Evaluate Meal and Rest Break Policies
  • April 24, 2012 | Authors: Martin K. Deniston; Diana M. Estrada; Ricki E. Roer
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - Los Angeles Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - New York Office
  • While the California Supreme Court's long-awaited decision in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Cal. April 12, 2012) is largely a win for California employers, there are certain aspects of the decision to which employers should pay close attention. The Brinker decision has clarified certain obligations employers have with respect to meal and rest break requirements, including the timing of such breaks.

    Providing Meal Breaks
    The Court held that employers need only provide uninterrupted meal breaks and not ensure that the breaks are actually taken. An employer's duty to provide meal breaks is satisfied if the employer relinquishes control over the employees, permitting them to take an uninterrupted 30-minute meal break. Employers are not obligated to police their employees to make sure they are not performing work tasks while on their meal breaks. If an employee chooses to perform work during a meal break, there is no violation of law. Moreover, proof that an employer had knowledge of an employee working through a meal break will not alone create liability for premium pay. The Court specifically stated that: "Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay underĀ ... Labor Code section 226.7, subdivision (b)."

    While this holding may make it more difficult for employees to make a claim for missed meal breaks, it certainly does not foreclose opportunities for employees to do so. In fact, potentially inviting further litigation in this area, the Court did state that employers "may not undermine their own formal policies of providing meal breaks by pressuring employees to perform duties in ways that omit their breaks." In other words, employers may not adopt informal policies that encourage or incentivize employees to skip their breaks. The Court further explained that "what will suffice [in terms of meeting meal break obligations] may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law." Accordingly, there will likely continue to be meal-period litigation in reference to whether an employer's meal break policies suffice in a particular industry and/or whether certain practices discourage meal breaks.

    Timing of Meal Breaks
    The Court held that Labor Code section 512, in accordance with the applicable Wage Order, requires a first meal period no later than the end of an employee's 5th hour of work or not later than the start of the 6th hour of work, and a second meal period no later than the end of an employee's 10th hour of work. There are no additional timing requirements beyond those in section 512. The Court rejected the idea of rolling five-hour meal breaks. Thus, an employee who works an eight-hour shift and takes a meal period after working two hours would not be entitled to a second meal period during that shift.

    Rest Breaks
    The Court confirmed that employers need only authorize and permit employees to take 10-minute rest breaks when an employee is eligible to take such a break. There is no violation of law if an employee voluntarily chooses to forego a rest break. Nevertheless, the Court affirmed certification by the lower court of a rest-period class because Brinker's written policy may not have complied with the law in reference to a second rest period.

    Rest Breaks Eligibility and Timing
    The Court clarified when rest breaks should be permitted. Insofar as practicable, rest periods should be in the middle of each work period. The Court stated that: "Employees are entitled to 10 minutes' rest for shifts from 3.5 to 6 hours in length, 20 minutes for shifts of more than 6 hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."

    What this means is that employees who work a shift of:

    • Only 3.5 hours or less are not entitled to rest breaks.
    • From 3.5 to 6 hours are entitled to one 10-minute rest break.
    • More than 6 and up to 10 hours are entitled to two 10-minute rest breaks.
    • More than 10 and up to 14 hours are entitled to three 10-minute rest breaks.

    As most employers know, determining how best to administer and enforce break policies can be extremely challenging. Because the Court has provided some specific guidance regarding employers' obligations in reference to meal and rest breaks, it is very important that California employers review their policies and practices to make sure they are in compliance with the requirements set forth in the Brinker decision. Any changes that are required to the policies and practices to bring them into compliance should be made immediately. Meal and rest break policies should be reviewed with employees to make sure employees are aware of the policies and procedures, including break availability and timing. Clearly spelling out these policies and following them can go a long way toward avoiding litigation, which often takes the form of class action litigation. Legal counsel can assist employers in reviewing and updating policies where needed and advise on implementation issues that may be unique to different industries.