The California Supreme Court finally issued its long awaited decision in Brinker Restaurant Corporation, et al., v. Superior Court of San Diego County, on April 12, 2012. California employers and employees (and their attorneys) have been waiting for this decision to clarify their rights and obligations under California law with respect to providing meal periods and rest breaks to non-exempt employees.
Some of the key holdings by the California Supreme Court in Brinker are:
- An employer’s obligation under both California Labor Code section 512 and Industrial Welfare Commission Wage Order No. 5 is to provide an off-duty 30-minute meal period to its employees.
- An employer satisfies this obligation if it relieves its employees of all duty; relinquishes control over their activities; permits them a reasonable opportunity to take an uninterrupted 30-minute break; and does not impede or discourage them from doing so.
- An employer is not obligated to police meal periods and is not obligated to ensure that no work is done.
- Absent a waiver, California Labor Code section 512 requires employees who work a shift of more than five hours to be provided a first meal period no later than the end of their fifth hour of work. A second meal period must be provided no later than the end of an employee’s 10th hour of work.
- Employers are required to authorize and permit employees who work at least three and one-half hours or more in a day to take a 10-minute rest break for each four hours worked or major fraction thereof. The term “major fraction” means any time in excess of two hours.
- This means employees are entitled to 10 minutes rest for shifts from three and one-half hours to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, and 30 minutes for shifts of more than 10 hours up to 14 hours.
- Employers must make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate where practical considerations render doing so not infeasible.
- There is no requirement that employees be permitted to take a rest break before a meal period.
In addition to addressing meal periods and rest breaks, the California Supreme Court also discussed in Brinker the importance of keeping accurate time records. If an employer’s records show no meal period given, there is a rebuttable presumption that the employee was not relieved of all duty and no meal period was provided.
Accordingly, you should review how employees track their time on and off the clock (which includes clocking out for and returning from their meal period) because your time records may affect your ability to successfully defend any meal period claims.
You should also review your policies and procedures covering meal periods and rest breaks to confirm they comply with the California Supreme Court’s holdings in Brinker. This includes reviewing the timing of when meal periods and rest breaks are taken.
In addition, you should review your policies and procedures covering meal periods and rest breaks with your managers and supervisors and remind them not to discourage or impede employees from taking their off-duty 30-minute meal period.
If you need assistance with reviewing or updating your policies and procedures covering meal periods and rest breaks, feel free to contact one of DSMW’s employment attorneys.
Industrial Welfare Commission Wage Order No. 5 governs restaurant employees and is the wage order at issue in Brinker. Although other wage orders contain similar meal and rest period requirements for non-exempt employees, you should review the wage order applicable to your industry or the specific occupation to confirm that the Brinker holding with respect to meal periods applies.
An employer and employee may mutually agree to waive this meal period if the total shift is less than six hours.