Employee Break Requirements

On April 12, 2012, the California Supreme Court issued its long-awaited decision regarding the scope and timing of an employer’s legal obligations to provide meal and rest breaks to non-exempt employees in Brinker Rest. v. Superior Court. Because of the steep financial consequences for violating these laws, California employers have faced an ongoing tidal wave of lawsuits alleging meal/rest break violations during the last several years. The Court’s ruling addressed several issues of practical importance to employers, including:

• Scope of Duty to “Provide” Meal Breaks: The Court ruled that an employer satisfies its obligation to provide a meal break 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 an employer does not have an obligation to force employees to refrain from work during meal periods, the Court cautioned that employers would violate the law by pressuring employees to work during breaks (e.g., through scheduling practices that make it extremely difficult to take a break, or ridicule or reprimand of employees for taking breaks). While not legally mandatory, it may nevertheless be prudent for many employers to require employees strictly to refrain from work during breaks to avoid “he said, she said” disputes regarding the existence of such pressure.

• Timing of Meal Breaks: The Court clarified that the first meal period must start (i.e., not necessarily be completed) by no later than the end of an employee’s fifth hour of work, and the second meal period must start no later than the end of an employee’s 10th hour of work (absent any valid waivers).

• Timing of Rest Breaks: The Wage Orders require that employees who work at least three and half hours in a day must be provided a 10 minute paid rest break per four hours or major fraction thereof. There had been some dispute regarding how the language “major fraction thereof” should be interpreted. The Court clarified that the law requires employers to provide employees with 10 minutes’ rest for shifts from three and one half to six hours in length, 20 minutes total rest for shifts of more than six hours up to 10 hours, and 30 minutes total rest for shifts of more than 10 hours up to 14 hours, and so on. The Court ruled that Brinker’s policy providing one 10-minute rest break “per four hours worked” would be unlawful if proof established that Brinker applied the policy such that employees would not receive a second rest break for working shifts longer than six but shorter than eight hours.

• Interaction of Rest and Meal Periods: The Court held that there is no absolute requirement that a rest period must come before a meal period.

Make no mistake: we do not expect Brinker to end the tidal wave of lawsuits against California employers for alleged meal/rest break violations. There will continue to be disputes about whether employees were truly provided their requisite breaks without pressure to work, and compliance with other aspects of Brinker. It is essential for all employers to review their policies and practices to ensure compliance.

In light of the importance of this ruling, Hixson Nagatani LLP will provide a complimentary 60 minute webinar to discuss Brinker and answer attendee questions. In addition to discussing the above-referenced rulings in Brinker, we will also review the following important issues concerning California’s meal/rest break laws:

• Essential language for employee handbook policies

• Review of requirements for a valid meal period waiver

• Discussion of when “on-duty” meal periods are permissible

• Financial liabilities for non-compliance

Employers seeking further guidance on any of these issues may contact any of the firm’s lawyers listed below.

Raymond H. Hixson, Esq. ([email protected]; 408-486-9977)

Brian K. Nagatani, Esq. ([email protected]; 408-486-9988)

Mary Wang, Esq. ([email protected]; 408-486-9933)