April 16, 2012
By Rory Wicks
California employers should take immediate steps to update Employee Handbooks to reflect the Supreme Court’s recent opinion on their employees’ right to meal breaks in Brinker Restaurant Corp. v. Superior Court (2012 Cal. LEXIS 3149).
California law guarantees hourly employees meal breaks to ameliorate the consequences of long hours. An employee working more than 5 hours in a row must be provided a meal period of at least 30 minutes — except that when the whole work day is 6 hours long or less, the meal break may be waived by the mutual consent of the employer and the employee. An employer may further not employ an hourly employee for a work period of more than 10 hours without providing the employee with a second meal period of at least 30 minutes – except that when the whole work day is less than 12 hours, the second meal break may be waived by mutual consent of the employer and the employee and only if the first meal period was not waived.
In 2000, the State adopted for the first time penalties for the denial of meal breaks. Employers who deny meal breaks must pay “premium” wages, one additional hour of pay at the employee’s regular hourly rate for each workday the meal period is not provided. These penalties are one of the factors leading to the recent onslaught of wage litigation in California.
In Cicairos v. Summit Logistics, Inc., an intermediate appellate court concluded an employer has an affirmative obligation to ensure that its employees take meal periods. However, in Brinker Restaurant Corporation v. Superior Court and Brinkley v. Public Storage, Inc., other appellate courts concluded that while employers cannot impede, discourage or dissuade employees from taking meal periods, employers need only provide them and not ensure they are taken. Cicairos, Brinker and Brinkley set the stage for the Supreme Court to decide the issue.
The Supreme Court unanimously decided Brinker on April 12, 2012, and concluded:
* An employer is obligated to relieve their hourly employees of all duties during a meal break, relinquish control over their activities, and permit them a reasonable opportunity to take an uninterrupted 30-minute break. The employer may not impede or discourage employees from taking the meal break. Employers “may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
* However, an employer “need not ensure that the employee does no work.” The “employer is not obligated to police meal breaks and ensure no work thereafter is performed.” If the employee chooses not to take the meal break and to continue working, the employer will not be liable for the penalty. At most, the employer will be liable for the employee’s regular hourly rate of compensation, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.” Employees “cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate” liability for penalties.
* Finally, the Supreme Court addressed the timing of meal breaks. The employer must provide a meal break by the start of an employee’s fifth hour of work; and a second meal break by the end of an employee’s tenth hour of work.
It is now time to take immediate steps to update your Employee Handbooks. Each hourly employee should sign an acknowledgment that he or she is entitled to an uninterrupted 30 minute meal break after five hours of daily work, and a second uninterrupted 30 minute meal break after ten hours. The employee should be fully informed that the meal break is his or her right and the employer will not impede or discourage the meal break. The employee should further be warned that if he or she chooses to not take the meal break, and continues to work, the employer will not be liable for monetary penalties. Finally, the Employee Handbook should stress that the employee must accurately account to the employer for meal breaks in daily time reports.