On April 12, 2012, the California Supreme Court published its long-awaited decision in Brinker Restaurant Corporation v. Sup. Ct. The ruling is generally favorable for employers, as it expands their ability to defend themselves against claims of missed meal and rest breaks, both on an individual employee and class action basis. Employers should take note of the following key aspects of the decision:
Meal Breaks: “Provide,” Not “Ensure”
An employer must relieve the employee of all duty for designated meal breaks, but need not ensure that the employee does no work. If work does continue during the break after the employee was relieved of all duty, the employer will not be liable for premium pay of one hour at the employee’s hourly rate. At most, it will be liable for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.” As the Court put it, “[t]he employer is not obligated to police meal breaks and ensure no work is performed.”
Proof that 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 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.”
The Employer’s Obligation
If a meal break is not taken by the employee, the burden is on the employer to show that the employee had been advised of the legal right to take a meal break, and that the employee knowingly and voluntarily decided not to take the meal break. This places an obligation on employers to maintain records showing that breaks were in fact taken.
No “Rolling Meal Breaks”
A first meal period is required to be taken 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. No additional timing requirements exist. The concept of “rolling breaks,” in which a meal break must be taken for every five hours worked, is rejected by Brinker.
Rest Break Calculation Clarified
The California rest break law requirement is ten minutes rest time per four hours worked, or major fraction thereof, except for employees whose total daily work time is less than 3.5 hours. This means that rest breaks are determined by the number of hours worked divided by four. If the result is a fractional part of half or less than half, round down. If the result is a fractional part of more than half (a “major fraction”) round up. Multiply the aforementioned fractional part by ten minutes to determine break durations.
Shift / Break Time
< 2 hours / None
2 hours up to 6 hours / 10 minutes
6 hours up to 10 hours / 20 minutes
*employees whose total daily work time is less than 3.5 hours are not entitled to a rest break
Timing of Breaks: No Specific Sequence Required(/span>
California’s Wage Orders do not address the sequence of meal and rest breaks. 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. Thus, meal breaks could come before rest breaks without creating a violation.
Off the Clock Work: Knew or Should Have Known Standard
Employers are only liable for “off the clock” work if the employer knew or should have know that the work was being performed. A policy prohibiting “off the clock” work can be used to support the employer’s position that no such work was permitted. Employees being clocked out creates a presumption that they are doing no work.
Employers can maximize the impact of Brinker by taking the following practical steps:
- Implement and enforce policies on the right to take meal and rest breaks. Specify in detail the break requirements of California law and provide a reporting procedure for missed breaks. Have all new hires and current employees sign an acknowledgment of receipt of the policy, and provide them with a copy. Include the policy in the employee handbook, and post the policy and applicable California Wage Order in a conspicuous location, such as the employee break room. Address breaks with new hires in orientation.
- Have a policy prohibiting off the clock work and strictly enforce it.
- Train managers to enforce wage hour policies consistently. When employees legitimately miss meal and rest breaks, pay the statutory premium pay; when employees work off the clock, pay them for the hours worked. Take disciplinary action against non-compliant employees as well as their supervisors where appropriate.
- The Court indicated in Brinker that employers are still required to comply with the law on meal and rest breaks, even with the “provide” standard. Continue to enforce meal and rest break policies. Make sure that employees clock out and back in for lunch.
- Maintain accurate time and payroll records. The Court stressed that employers bear the burden of maintaining records. Failure to do so can subject employers to liability for a variety of potential violations.
- Periodically audit time records to ensure compliance.
This Alert addresses general legal principles. It is not to be relied on as legal advice. Legal counsel should be consulted before using the information in this Alert in any particular situation.