The Brinker Meal Period Decision

California Supreme Court

The California Supreme Court has handed down its long anticipated ruling in Brinker Restaurant Corp. v. Superior Court, Case No. S166350. Applying rules of construction and common sense, the Court ruled that employers need not force their employees to take a meal break:

"An employer's duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this 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.  What will suffice may vary from industry to industry ... On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed.  Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay." 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.

The Court also put to rest any question there may have been about the separate rest period entitlement: "Employees are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."

What does the decision mean for employers?

Because the Supreme Court has foreclosed the argument that the lack of a record of a meal period within the first five hours of employment automatically makes the employer liable for a meal period violation, the decision should limit the circumstances in which class action certification is appropriate for such claims. In the absence of an employer policy that violates the meal period, each individual employee would have to prove that he or she was prevented from taking a meal break. But, in the case before it, the Court did not rule out a class action, leaving it to the Superior Court to determine, in light of the conclusions reached in the decision, whether common issues predominated over individual ones.

Further, the Supreme Court's decision does not read the meal period requirement out of California law. Employers must still ensure that all their non-exempt employees are completely relieved of duty for 30 minutes by the end of the first five hours of work.

What should employers do?

Now that the Supreme Court has conclusively determined the extent of the employer's obligation with respect to meal periods, employers should review their policies and practices to make sure that they are in compliance.

1. Employers should make sure that all supervisors and managers are informed of the legal requirement recited in the Supreme Court's opinion, and that any violations will result in discipline.

2. Employers should review their employee handbooks to make sure that it informs employees of their right to 30 duty free minutes by the end of their fifth hour of work. The acknowledgment of receipt of the handbook should contain a separate initialed acknowledgment of the employer's policy to provide meal periods.

3. Employers should make sure that their timekeeping systems accurately record meal periods. Section 7 of the California wage orders requires employers to maintain accurate records of meal periods.

4. Employers should consider encouraging employees to take their meals away from the work location. This will avoid claims that an employee was not relieved of all duty because someone asked a work-related question, or requested performance of a work duty.

5. Employers should self-assess the one-hour of premium pay imposed by California Labor Code section 226.7, if they need an employee or group of employees to work without a meal period. Although the Labor Code and wage orders permit employees to give written waivers "when the nature of the work prevents an employee from being relieved of all duty," such waivers are revocable at the employee's option and may be subject to challenge for having been coerced.

Employers Need Not Ensure Employees Take Meal Periods

California Labor Code section 512 bars employers from having an employee work more than five hours without providing the employee with a meal period of not less than 30 minutes. The wage orders promulgated by the Industrial Welfare Commission mimic that provision. See, for example, IWC Order No. 5, page 7, section 11. For years, controversy has raged over whether it is enough for employers to make the time available, or whether employers must ensure that employees actually take their meal periods. The California Supreme Court is expected to settle the issue when it finally decides Brinker Restaurant Corp. v. Superior Court, Case No. S166350, for which it granted review on October 22, 2008. (The Court of Appeal opinion under review is available here.) The case has been fully briefed, but is not yet set for oral argument.

In the mean time, the Courts of Appeal from time to time publish opinions on the issue. In the most recent decision, Lamps Plus Overtime Cases, Division Eight of the Second District Court of Appeal agreed with other recent decisions that it is enough to make the time available, and not interfere. "This mandatory language does not mean employers must ensure employees take meal breaks. Rather, employers must only provide breaks, meaning, make them available. Our interpretation of the meal break requirement is supported by the definition of the word 'provide' as used in Labor Code sections 226.7, subdivision (b), and 512, subdivision (a) ('providing'), as well as California Code of Regulations, title 8, section 11070, subdivisions 11 and 12. ... 'Provide' means 'to supply or make available.' (Webster's Tenth Collegiate Dictionary (1993) p. 937.)"

"The notion that an employer must ensure all employees take their meal and rest periods is utterly impractical. 'Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day.' [Citation omitted] It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws."

We discussed the meal period rule in previous posts on February 20, 2011, October 19, 2008, and September 21, 2008. The Labor Commissioner has posted the answers to frequently asked questions about meal periods here.

UPDATE (October 5, 2011)

The California Supreme Court will finally hear argument in the Brinker case on November 8, 2011. By law, it must hand down its decision within 90 after submission of the case following argument. In the mean time, the Court granted review of the Lamps Plus Overtime Cases referenced in this blog post on July 20, 2011.