“An employer’s obligation to provide employees with an adequate meal period is not satisfied merely by assuming that the meal periods were taken.”
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WAGE & HOUR UPDATE
California Meal and Rest Period Rules
In Limbo---Again
By Christopher W. Olmsted
The California Supreme Court has granted review of a pro-employer meal and rest period case, Brinker Restaurant v. Superior Court. The Court may take a year or more to mull over the matter; in the meantime, California employers are left guessing about this baffling aspect of labor law.
Much is at stake. The cost of violating California’s meal and rest period rules is a penalty, on each occasion, equal to one hour’s extra pay to the affected employee. In a class action involving a large group of a company’s hourly employees over a three to four year time span, the compensation claim can soar into the millions.
The following issue is at the heart of the Brinker case: under California law, is it enough for an employer to make meal and rest periods available to employees to take or not take as they see fit, or does the employer have an affirmative duty to force employees to actually take their breaks?
In August, an intermediate court of appeal decided that it is enough to make the breaks available. That decision is evaluated here.
Now that the California Supreme Court has agreed to review the decision, the lower court decision is effectively deleted from the case law books and is no longer a valid legal authority. That means employers are in limbo until the Supreme Court makes a ruling.
While we await a decision, this article addresses two issues: first, what does the state’s labor law enforcement agency, the Division of Labor Standards Enforcement (DLSE), have to say about meal and rest period rules? Second, what meal and rest policies should employers follow pending the California Supreme Court ruling?
DLSE View
On October 23, 2008, after the Supreme Court granted review in Brinker, the state labor enforcement agency, called the Division of Labor Standards Enforcement (“DLSE”) issued a memorandum on the topic of meal and rest periods.
The DLSE begins by acknowledging that state law gives employers no clue what the correct answer might be. “Despite claims from all sides on this issue, neither the statutory nor regulatory language, nor the legislative and regulatory history of the California Legislature and Industrial Welfare Commission, respectively, directly and definitively answers this fundamental question. Similarly, until Brinker was decided, no California court had directly decided this issue.” That’s right. Thousands of employers have been sued for failing to follow rules that haven’t even been established yet.
The DLSE attempts to provide clarity, at least for its own enforcement purposes. It supports the view that employers need only make breaks available, and need not go so far as to ensure employees actually take the breaks. The DLSE bases its conclusion on these factors:
Labor Code § 512 and Wage Orders. When describing an employer’s duty regarding meal and rest period rules, the Labor Code and the Wage Orders use the term “providing,” not “ensuring.” The Code states: “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes....”
State Court Decisions. There are no cases directly on point. Brinker will change that, someday. But cases addressing meal and rest periods are logically consistent with the “provide” interpretation. (Particularly a case titled Cicairos v. Summit Logistics, Inc.)
Federal Court Decisions. A number of federal courts in California have interpreted the law to require only that breaks be provided. (White v. Starbucks; Perez v. Safety-Kleen Systems, Inc.; Kenny v. Supercuts; Salazar v. Avis Budget Group; Kimoto v. McDonald’s Corp.; and Gabriella v. Wells Fargo Financial, Inc.) Although state courts are not bound to follow federal case precedents interpreting California law, the DLSE finds that the well-reasoned federal decisions accurately recite California law.
The DLSE added the following guidance:
Employers may not require employees to work through meal and rest periods (or if they do, they must pay the one hour wage penalty). The employee must make a free choice.
An employer does not satisfy its Labor Code obligations if its policies or practices prevent or discourage employees from taking their meal periods.
An employer’s obligation to provide employees with an adequate meal period is not satisfied merely by assuming that the meal periods were taken.
The first meal period provided by an employer must commence prior to the end of the fifth hour of work.
An employer must provide a second meal period for any employee employed for a work period of more than ten (10) hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
There is no separate requirement preventing employees from working more than five hours between meal periods (as plaintiffs in Brinker have argued). For example, if an employee takes a meal break during hour three of the shift, he is not entitled to take one again in hour eight merely because five hours have passed.
Employers have a duty to record their employees’ meal periods.
Caveat About The DLSE Opinion
The DLSE memo cannot be taken as “gospel” by California employers. The memo is not law; it is an agency’s interpretation of the law. Courts are not bound to follow the DLSE’s opinion (and in a number of other instances, they have refused to do so). It is probably safe to say that if the DLSE brings an enforcement action against an employer, or an employee files a claim with the DLSE, that the rules in this memo will apply. In the courts, it is an open question.
Employer Options
What is an employer to do while awaiting a decision from the Supreme Court?
Option One
Option one is for risk takers. Gamble that the DLSE and the Brinker intermediate court of appeal got it right. Provide meal and rest periods to your employees, but do not force them to take the breaks.
Below are some general ideas in addition to the pointers offered by the DLSE—but be forewarned that some of these suggestions could turn out to be completely wrong when the Supreme Court decides Brinker.
Include a meal and rest period policy in the employee handbook. A written policy reinforces the company’s expectations.
Train employees that they have the right, but not obligation, to take breaks. Train supervisors to encourage breaks. Document the training.
Ensure that employees are given work schedules that make taking breaks feasible. If it is practically impossible to take a break, then the employer is not “providing” one. For example, assign a relief worker for an office receptionist, or allow the phone system to be placed on “auto-attendant” for 30 minutes per day.
Encourage employees to take the breaks.
Ensure that employees on meal and rest breaks are free of all job duties. For example, ensure that they are not expected to answer customer calls during lunch.
Do not ask, expect, or pressure employees to skip breaks.
Record the start and end time of each meal period.
If employees want to skip a break, let them, so long as they freely make the decision.
Employees should be required to notify a supervisor if a break was desired but missed. Document any such instances.
Option Two
Option two is the safer, more conservative approach. Continue to force employees to take meal breaks. No exceptions. Even if they go kicking and screaming, go they must, for no less then 30 minutes. Suggested tactics:
Supervisors should direct and monitor employee break activity on a daily basis.
Record the start and end time for each meal period.
If feasible, schedule a specific block of time for the employee to take at least 30 uninterrupted minutes for a meal break. The break must take place before the fifth hour of work. The employee must be free of all duties.
Alternatively, require employees to inform their supervisors each time they take a meal break. Supervisors should confirm that employees have in fact gone on break each shift, and that they have done so for the minimum 30 minutes.
Discipline employees who do not take the mandatory break. On such occasions, the employer must pay one hour wage penalty.
We will continue to monitor the Brinker case and publish any further developments.
More Legal Update articles.
Download entire November Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
DLSE_Brinker_Memo_10.23.08.pdf
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