After three years, the California Supreme Court finally issued its much-anticipated decision on how employers must manage meal periods and rest breaks. The April 12, 2012 unanimous decision in Brinker Restaurant Corporation v. Superior Court clarifies California employers’ obligations to “provide” meal periods and “authorize or permit” rest periods. The decision highlights that all California employers need to have lawful meal and rest break policies to minimize the risk of expensive class litigation. Brinker is generally favorable for employers. The major take-aways are summarized below.
Meal Periods: No Duty to Ensure Employees Do No Work
First, the California Supreme Court held that an employer’s duty to “provide” meal periods is a duty to relieve employees of all duty, empowering employees to decide how to use the meal period. Importantly, the court rejected the plaintiffs’ contention that employers have a duty to ensure that no work is done during a meal period.
If an employee continues to work after an employer relinquishes control, the employer will be liable for regular wages “only when it ‘knew or reasonably should have known'” that the worker was working through the meal period. The court thus clarified that meal period penalty pay (an extra one hour’s wage) is not owed when an employer relinquishes control and an employee nevertheless decides to continue working.
As a result, employers are not obligated to “police meal breaks.” But by the same token, employers cannot pressure employees to perform their duties in ways that omit breaks, nor may they “coerce”, create incentives, or otherwise “encourage[e] the skipping” of meal periods.
The Court also held that if an employer knows that the employee is working through the meal period and “suffers or permits” such work, then the employer must pay for the actual time worked during the meal period, even though no penalty is owed.
Meal Periods: When Meal Periods Must Be Provided
Next, the Court resolved when employers must make meal periods available. The Court concluded generally that the first meal must be afforded no later than the end of the employee’s fifth hour of work, and a second meal period must be provided no later than the end of an employee’s 10th hour of work (the obligation to provide a second meal period arises only if an employee works more than 10 hours in a day). The court also noted that, due to differing language in other Wage Orders, the first meal period may be offered after six hours of work to employees governed by Wage Order No. 12 (motion picture industry) and those unionized employees governed by Wage Order No. 1 (manufacturing industry) who collectively bargain for that variance.
Rest Breaks: Number of Rest Breaks to Provide
Regarding rest breaks, the Court considered what is meant by Wage Order No. 5 where it states the “authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” The Court held that an employer is obligated to authorize or permit rest breaks as follows: an employee who works a shift of only 3.5 hours or less is not entitled to a rest break; an employee who works 3.5 to 6 hours is entitled to one 10-minute rest break; an employee who works more than 6 and up to 10 hours is entitled to 20 minutes of rest, and an employee who works more than 10 hours and up to 14 hours is entitled to 30 minutes of rest.
When Rest Break Must Be Permitted
The Court also sided with employers regarding the timing of rest breaks, holding that employers are “subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” The Court rejected a strict rule that a rest break must occur before a meal break.
What Employers Should Now Do
Employers should review and revise their meal period and rest break policies as necessary to reflect the Brinker court’s rulings. In addition, employers should train managers to provide meal periods and rest breaks in compliance with company policies. Finally, employers should train nonexempt employees regarding when they are entitled to take meal periods and rest breaks, so that any failure to take meal or rest breaks at the correct time cannot be shown to be the result of a company wide policy.
While the Brinker decision is generally favorable, our advice to employers remains the same as before the decision: (1) employers should have a written policy advising employees of their right to take a 30 minute meal period during the first five hours of work and a second meal period if the employee works more than 10 hours; (2) employers should have a written policy advising employees of their right to take a 10 minute rest break for every four hours worked; (3) employers should maintain accurate time records setting forth the starting and ending time of each meal period and the starting and ending times of the workday; and (4) if possible, employers should have employees review and sign their time card and attest that the time recorded is accurate and that they have taken all required meal and rest periods unless otherwise noted on the time card.
If you have questions about how the Brinker decision impacts your business or how you should change your policies in light of it, please call one of the Labor & Employment attorneys at Hill, Farrer & Burrill LLP.