After years of waiting, and $millions (if not $billions) in legal fees, settlements and damages paid by California businesses, the California Supreme Court has issued its rest and meal period decision in the Brinker Restaurant case.
The Brinker Court fashioned practical rules somewhat favorable to employers. The key question was whether California employers had to force/police employees to take their meal periods, imposing onerous demands on management, or whether it is enough for employers simply to make meal periods available and then it’s up to the employee to take them. The Court chose the latter. The Court also addressed the timing of rest/meal periods, ruling that a rest period need not precede the meal period, but did nothing to curb class action litigation over the issue.
Essentially the Court ruled that 10 minute rest periods and 30 minute meal periods work the same under California law. The employer must make them “available.” A California employer need not force or “police” employees to take their rest/meal periods.
But an employer may not do anything to prevent, impede or discourage employees from taking their rest/meal periods.
If any employee works through their meal period (and the employer “knew or should have known the worker was working through the authorized meal period”), the employer must still pay employees for the time worked; but the employer does not have to pay the one hour penalty required by Labor Code section 226.7. Rest periods are always paid so paying for them has never been an issue.
Details and suggestions on how to comply with the California rest/meal period laws follow.
Rule: Employers must “authorize and permit” 10 minutes of rest time for each 4 hours worked or “major fraction” thereof, but if the “total daily work time is less than three and one-half (3 ½) hours” then a rest period need not be authorized. This means: If the total work time for the workday is 3 ½ hours or less, California employers need not authorize any rest period.
Otherwise if employees work more than 3 ½ hours in a workday, then employers must authorize the following rest periods: 3 ½ to to 6 hours, one 10 minute rest period; more than 6 hours to 10 hours, two 10 minute rest periods; add 10 minutes rest period for every 4 hours after 10 hours.
Timing of rest periods: The 10 minute rest period may come before or after the meal period depending on the circumstances; there is no requirement that one come before the other. Rest periods are paid; therefore employees do not “clock out” for rest periods.
Rule: While the Labor Code and the Wage Orders use different language for meal periods versus rest periods, the California high court ruled the meal period obligation is essentially the same as the rest period obligation. An employer must essentially make 30 minute meal periods available. An employer meets its legal 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.” Then it’s up to the employee to use the 30 minutes of off duty time for their own purposes, whether or not work continues.
Further, “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
Timing of meal periods: Absent a “waiver” the law requires a first meal period no later than the end of an employee’s fifth 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. Theoretically, a meal period could come before the first rest period under appropriate circumstances.
Vision Law® Best Practices
Put the rules in writing.
Employers can do this by:
- Posting the Wage Order applicable to their businesses;
- Have a written rest/meal period policy either in an employee handbook or as a stand-alone policy;
- Have employees sign and date under penalty of perjury on each time record for each payroll period that: 1) they agree to follow the rest/meal period policy, 2) the employee has complied with the rest/meal period policy unless otherwise noted on the time record (e.g., missed rest or meal period with a notation of the reason), and 3) the time entries are accurate; and
- If employers wish to utilize a meal period waiver for shifts of 6 hours or less, use a written waiver form for that purpose.
Manage accuracy of Time Records.
Employers can do this by:
- Requiring employees to “clock out” for meal periods; and
- Monitoring employee time records for that purpose.
For example, if an employee is scheduled to work 9:00 am to 5:30 pm with a 30 minute off duty meal period (an 8 hour day) and the employee “elects” not to take the 30 minute meal period and works instead, 30 minutes of overtime is the result even if the employer need not pay the 1 additional hour for the meal period penalty. That’s because by working through the 30 minute meal period the 8 hour day became an 8.5 hour day and the employer must still pay for the actual time worked (if it knew or should have known the employee worked through the meal period). Also when the employer monitors time records and notices this, it is then able to remind the employee of the meal period policy and its policy prohibiting overtime without advance written authorization.
The time record will still be an employer’s first line of defense if an employee claims after the fact that they were forced to work through meal periods. If the employee’s time records show the employee clocked out for the meal period while acknowledging the accuracy of each time record, then in the absence of egregious employer conduct it should be difficult (or at least not credible) for the employee to say they were forced to “clock out” but still work through the 30 minute meal period.