The state Supreme Court has finally clarified California employer obligations regarding employee meal periods and rest breaks. As we predicted after the oral arguments in Brinker Restaurant Corp. v. Superior Court (“Brinker”), the Court determined employers have no duty to ensure that employees perform no work during meal breaks. The Court also ruled on the number and timing of meal and rest breaks required under state law.

Brinker was one of a large number of class action cases filed after back pay and penalties became available in 2000 for the denial of meal and rest breaks. Employers breathed a sigh of relief following the Court of Appeal’s holding that the law did not require them to ensure employees were taking meal breaks; however, in 2008, the Supreme Court accepted review of that decision, throwing the world of employment law back into limbo. The Court delayed deciding Brinker for over three years, creating concern among employers about their risk of retroactive liability. Meanwhile, the logjam of cases whose resolution depended on the outcome in Brinker grew ever larger. The Court’s unanimous 54-page decision offered much needed guidance.

Meal Breaks. Both employers and employees had asked the justices to resolve certain key issues, including the meaning under California Labor Code § 512 of ‟providing” employees with a 30-minute meal break for each five hours of work time. The plaintiff employees argued that the term provide imposed an affirmative duty to ensure that employees took meal periods, while the employer, Brinker, argued employers were only obligated to make meal breaks “available.” At oral argument, some justices worried about the outcome if employers faced penalties when employees voluntarily kept working. Justices noted the irony that diligent employees would be vulnerable to discipline, even termination, for working through lunch.

The Court concluded that an employer meets its obligation related to meal periods by relieving the employee of all duty for 30 minutes for every five-hour shift. The Court expressed the opinion that a positive obligation to ensure employees do no work during this time may be inconsistent with the obligation to ‟relinquish any employer control over the employee and how he or she spends the time.” The decision made it clear the employee is ‟at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” At the same time, if the employer knows or has reason to know the employee is working, the employee must be paid at straight time.

The Court also addressed the timing of multiple meal breaks. An employee scheduled to work more than 10 hours is entitled to two meal breaks. At oral argument, it appeared the Court might adopt a rolling five-hour rule, requiring the employer to allow the second break five hours after the first. The Court ultimately held the applicable Wage Order and Labor Code sections contained no such requirement.

Rest Breaks. The Court affirmed that an employer must provide a 10-minute rest period for each four hours of work, or ‟major fraction thereof,” which the Court defined as a two-hour period. No rest break is due, however, for a shift lasting less than 3.5 hours. The Court rejected the argument that a rest break must always occur before a meal break. Because of the potential for confusion about the timing of rest and meal breaks, we have provided a summary and charts below.

The Bottom Line. Now that Brinker has supplied the missing guidance, here is what employers of non-exempt employees need to know in order to avoid liability, including back pay and penalties, for missed breaks.The Court rejected the argument that a rest break must always occur before a meal break. Because of the potential for confusion about the timing of rest and meal breaks, we have provided a summary and charts below. Generally, employers must authorize and permit breaks and must not structure the work environment to impede or discourage them; however, employers will not face penalties if employees voluntarily perform work during breaks.

Rest Breaks (See the Industrial Welfare Commission Wage Orders)

• A rest break is a 10-minute period during which the employee is relieved of all duty.
• A rest break is counted as time worked, meaning it is paid time.
• Rest breaks must be given as close to the middle of the four-hour work period as is practicable. The break may be at a later time if justified by the nature or circumstances of the work.
• For an 8-hour shift, the general rule is that one rest break should fall on either side of the meal break; however, an employer may alter this based on work flow, customer needs, or other legitimate factors.
• Restroom breaks cannot be counted as rest periods; however, an employer may place reasonable limits on the amount of time an employee is away from the workstation.
• Employers are required to provide access to a suitable rest area or break room, separate from the toilets.
• There is no requirement to keep records of rest breaks.
• See the chart below to determine how many rest breaks an employee is entitled to based on the length of the scheduled shift.

Meal Breaks (See California Labor Code § 512)

• A meal break is an uninterrupted period of at least 30 minutes during which the employee is relieved of all duty and is free to leave the premises.

• During the meal period, an employee must not be under any employer control whatsoever and must be free to attend to any personal business he or she chooses.
• Meal breaks are generally unpaid time, but if the employer knows or has reason to know the employee is working through the meal period, the employee must be paid at straight time.
• The employer must keep records of meal breaks.
• Meal breaks may be waived in limited circumstances. For example, an employer must allow a meal break for a 6-hour shift, but because the shift will end within an hour of when the break is due, there may be a mutual agreement to waive it. For a shift of no more than 12 hours, the second break may be mutually waived only if the first was not waived. These waivers should be in writing and are revocable by the employee at any time.
• If the nature of the work cannot be interrupted, an ‟on-duty” meal period is permitted by written mutual agreement. Due to the potential for large penalties, seek consultation if this applies to your business.
• See the chart below to determine how many meal breaks an employee is entitled to based on the length of the scheduled shift, in the absence of a waiver.

The summary above is an overview, rather than a comprehensive list of employer requirements related to breaks.

Please contact Bay Oak Law if you have questions about specific situations or want assistance putting in place policies to protect your business. Ask about our customizable employee handbook and forms that will help you reduce your risk of liability and ease your mind about meeting your obligations under federal and state law.