California Employer LAWlert: Employee Meal Breaks in California

California law states:  “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” With respect to rest periods California requires that employers provide a paid 10 minute break to an employee who works a minimum of 4 hours with the rest period given after any major factor of that four hour period is worked. The confusion arose as to what exactly was the employer’s duty with respect to ensuring that any given employee took the prescribed meal break and or rest period. How far was an employer required to go to ensure the law was followed? Did the employer have to simply tell the employee of the availability of meals and rest periods? Was it upon the employer’s shoulders to stand over the employee and make sure he or she took their rest or had a meal? Then came the Brinker case in July 2008 and some clarity to the issue. (See Brinker Restaurant Corp. vs. San Diego County Superior Court) A class action was brought against the Brinker Restaurant Corp., saying the company systematically denied them the rest and meal breaks required under California law. The plaintiffs argued that Brinker failed to give the rest periods in the middle of a four hour period and that the employer failed to ensure that meal breaks were taken. Brinker argued it was only required to provide rest periods “when practicable” during work shifts and not to ensure that all employees took breaks. The appeals court agreed with Brinker. In its reasoning the court stated that the labor code did not prohibit an employer from offering rest periods at intervals other than exactly in the middle of any four hour period and the court when on to hold that employers are granted discretion hot to have rest periods or meal breaks at specified times because of the nature of the work or the circumstances of a particular employee. With specific reference to the restaurant industry the court noted that employees such as waiters and waitresses usually want to work during normal meal break times because that is when customer volume is at its greatest thereby offering the employee the greatest chance for increased tips. Finally, the court held that employers were not required to “police their employees and force them to take meal breaks.” So how should employers conduct themselves in light of the Brinker case? While Brinker brings clarity to the issue and lightens the burden on employers, employers must still be cognizant of the legal requirements surrounding meal breaks and rest periods and should do the following: 1. Have well constructed written policies for meal breaks and rest periods 2. Educate staff as to the policies 3. Train management on the importance of consistent implementation of these policies 4. Ensure that all meal breaks are taken away from any given work station a. Rest periods may be taken at a work station since they are paid for but no work can take place 5. Meal break waivers must be in writing and freely consented to be the employee a. Waivers should only be used for business necessity 6. Keep accurate written records of all meal breaks taken or waived While Brinker was a favorable decision for employers it must not be mistaken as a carte blanche to deny employees their meal breaks and rest period rights enshrined under California law. If you have further questions about this or any other human resource matter please feel free to contact your Ogilvy Hill Insurance representative. *NOTHING IN THIS ARTICLE SHOULD BE CONSIDERED LEGAL ADVICE. IF YOU ARE CONSIDERING ANY EMPLOYMENT POLICIES OR HAVE ANY ISSUES THAT RELATE TO ANYTHING DISCUSSED IN THIS ARTICLE YOU ARE ENCOURAGED TO CONTACT A LICENSED ATTORNEY WITH EXPERIENCE IN THE AREA OF EMPLOYMENT LAW.