Employer's Duty Regarding Breaks

MEAL AND REST PERIODS FOR NONEXEMPT EMPLOYEES

Our small and medium size business clients often have questions relating to their employment practices. When relevant California or Federal laws change or are clarified, we want our clients to be informed.

A recent California case brought some clarity in the areas of meal and rest periods. (Brinker Restaurant Corp. v. Superior Court L 1216356, 14 -24 (Cal., 2012).

SUMMARY PRACTICE POINTS:

1. Bona fide relief from duty and the relinquishing of control satisfies the employer's meal break 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 under applicable law. In other words, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Of course, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.

2. Absent waiver (which should be in writing), employers must provide a first meal period no later than the end of an employee’s fifth hour of work. In addition, employers must provide a second meal period no later than the end of an employee’s tenth hour of work.

3. Rest breaks must fall in the middle of the work period. An employer must make a good faith effort to permit rest breaks in the middle of the work period, but the employer can deviate from that schedule where practical considerations rendered it infeasible.

4. Employers should review their meal and rest break policies and make sure the language is clear and compliant with state law. An employer should have proper written employment policies and practices in place regarding meal and rest periods, Additionally, employers must make sure they do not discourage or prevent employees from taking required meal or rest breaks and should train both employees and supervisors on such policies and practices.

CALIFORNIA SUPREME COURT BRINKER CASE AFFECTING EMPLOYMENT RIGHTS

Brinker involved a wage and hour claim brought by employees. Employees (including cooks, stewards, bus persons, wait staff, host staff, and other hourly employees who staff Brinker's restaurants) alleged that Brinker failed to provide employees the meal breaks, or premium wages in lieu of meal breaks, required by law. (See §§ 226.7, 512; Wage Order No. 5, subd. 11) and failed to provide employees the rest breaks, or premium wages in lieu of rest breaks, due them under law. (See § 226.7; Wage Order No. 5, subd. 12.)

By way of background, state law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday. (See Lab.Code, §§ 226.7, 512; IWC wage order No. 5–2001 (Cal.Code Regs., tit. 8, § 11050); hereafter Wage Order No. 5.) Labor Code section 226.7, subdivision (a) prohibits an employer from requiring an employee “to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” In turn, Wage Order No. 5, subdivision 12 prescribes rest periods, while subdivision 11, as well as section 512 of the Labor Code, prescribes meal periods. Employers who violate these requirements must pay premium wages. ( § 226.7, subd. (b); Wage Order No. 5, subds. 11(B), 12(B); see Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1114, 56 Cal.Rptr.3d 880, 155 P.3d 284.)

MEAL PERIODS

On the issue of meal periods, the Court held (ruled): “An employer's duty with respect to meal breaks under the applicable law 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.” While the Court would not delineate exactly how an employer would meet the obligation (as it may vary from industry to industry), it did state “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 under applicable law.”

The Court further stated that “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.”

As to timing of the meal periods, the Court stated that an employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.

REST PERIODS

Employees working shifts lasting over two hours but under three and one-half hours, who otherwise would have been entitled to 10 minutes rest, need not be permitted a rest period. 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.

At to timing of the rest periods, Plaintiff employees in Brinker argued that employers have a legal duty to permit their employees a rest period before any meal period. The Court rejected this contention, holding that under the plain language of the operative wage order, there was no such requirement.

Also, regarding timing, the Court stated that the governing law requires that every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The only constraint on timing is that rest breaks must fall in the middle of work periods “insofar as practicable.” Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.

DISCLAIMER: This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Offices of Ron A. Stormoen by a signed written retainer agreement.