Brinker and Beyond—A Simple Guide to Meal and Rest Period Obligations

The long-awaited California Supreme Court decision in Brinker Restaurant Corporation v. Superior Court, Case No. S166350 (April 12, 2012) clarifies several issues relating to employers’ obligations regarding employee meal and rest breaks.

Background

California law generally requires employers to provide non-exempt employees who work more than five hours per day with at least one meal period of 30 minutes or more (paid or unpaid) and a 10-minute paid rest period for every four hours worked or "major fraction thereof." If an employer fails to provide an employee with an uninterrupted, off-duty meal period, or the mandated rest periods, it is required to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period was not provided.

The Key Meal Period Ruling

The primary issue was whether an employer must ensure that each employee have a duty-free meal period or need only authorize and permit its employees to take a meal period. 

Brinker ruled in the employer’s favor, holding that it need only provide employees with an off-duty meal break. An employer satisfies this obligation if it:

• Relieves the employee of all duty;
  
• Relinquishes control over the employee’s activities;
  
• Permits the employee a reasonable opportunity to take an uninterrupted 30-minute break; and
  
• Does not impede or discourage the employee from doing so.
  

If an employer follows these rules it will not be liable for a meal period penalty should an employee choose to work through an authorized meal period. An employer however could be responsible for payment of the employee’s regular pay (and overtime, if applicable) if the employer “knew or reasonably should have known” that the employee was working through the meal period.

Employer’s Take Away

Brinker makes it clear that  employers are not required to police and enforce the taking of meal periods or ensure that an employee does not perform any work during the meal break. Still the standards likely require that an employer do more than merely have a policy offering meal periods.

While the precise steps that an employer will need to take to meet the new Brinker standards will depend upon the specific employment circumstances, the following are general recommendations to avoid penalties and/or overtime liability:

• Schedule and post meal (and rest) period times for all non exempt employees working shifts of more than five hours.
• Establish a written policy with respect to waiving meal periods and any other time keeping policies. Require employees to sign and date an acknowledge of receipt. Nothing in the law requires that an employer allow an employee to work during meal periods. (There may be many reasons for requiring an employee to take the meal break.) Also, nothing in the law requires an employer to allow an employee to work during a meal period if doing so will result in liability for overtime.
• Require employees who voluntarily elect to work during scheduled meal breaks to sign an acknowledgement that they are voluntarily choosing to work during the scheduled meal period.
• Prohibit working during scheduled meal periods unless the employee signs the acknowledgement.
• Keep in mind that if working during the meal period results in overtime liability, the employer has the option of prohibiting an employee from skipping a meal period.
• If an employee does work during an unpaid meal period be sure that the employee is paid.
• If due to working without a meal break results in overtime liability—be sure it is paid.
• If due to an error or an employer emergency an employee ends up working during a meal period –or if an off duty meal period is interrupted by the employer, be sure and include payment for the time worked and also for the one hour penalty on the next pay check.
• Strictly enforce clocking in and out requirements for off-duty meal periods and any other scheduling requirements. Failure to comply should result in employee sanctions (non-monetary) up to and including dismissal.
• Record and retain accurate records and written waivers and acknowledgements. A record of an employee’s meal periods is required by law. Indeed, an employer’s failure to keep records regarding meal periods may lead to a presumption that the employee was not provided the required meal period.

Unless there is a company emergency—never-ever require an employee to work during a meal period. Skipping a meal period must be completely voluntary on the part of the employee.

The Rest Period Ruling

The court ruled that rest periods are independent of meal-period scheduling, meaning that they need not necessarily be arranged in any particular way around meal breaks. For example, a 10-minute rest break does not necessarily need to be taken before an employees' first 30-minute meal break. It can be taken after, so long as the correct number of each type of break is taken.

The court commented however, that, during an eight-hour shift, "'[a]s a general matter,' one rest break should fall on either side of the meal break." In effect, employers must authorize and permit employees to take rest periods in the middle of each work period insofar as practicable.

Employer’s Take Away

• While employees need not clock-out for rest breaks, to insure rest breaks are taken it is best that they be scheduled just as are meal breaks. Also, written scheduling will provide a record of employee rest breaks.
• Even though only 10 minute periods are required, in many situations this amount of time is inadequate to allow the employee to actually have the full amount of time depending on the location of the employee work area. Best to allow up to 15 minutes but no less than ten.
• While an employee may be required to stay on premises during a rest break, be sure that the employee is actually relieved of all work during the break. Do not require an employee to “jump-in” if things get busy during his or her break.
• Never allow employees to skip required breaks and then add the time to their unpaid lunch breaks.

For more information about Brinker and its implications to employer meal and rest period obligations, please contact Laura P. Worsinger at 213-457-1744, or your Dykema relationship attorney.

---

_{As part of our service to you, we regularly compile short reports on new and interesting developments in our business services program. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments on this newsletter, or any Dykema publication, are always welcome. © 2012 Dykema Gossett PLLC.}