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Employers Have No Duty to “Police” Employee’s Meal Breaks and Rest Periods

California employers are required to provide their employees with paid 10 minute rest periods throughout the day. If an employee works between 3½ hours and 6 hours a day, the employee is entitled to one paid 10 minute rest period. If an employee works between 6 hours and 10 hours a day, the employee is entitled to two paid 10 minute rest periods: one in the early part of the work day and one in the later part of the day. California employers also are required to provide their employees with one unpaid lunch break of no less than 30 minutes within each 5 hours of continuous work. Under California Labor Code, Section 226.7(a), employers cannot require their employees to work during either the paid rest periods nor the unpaid lunch breaks.

Although legally “required” to provide these rest periods and lunch breaks, until recently, California employers did not know whether they were required to ensure that their employees actually took the time off. Could an employer be found liable for back wages and penalties if an employee actually performed work during a rest period or a lunch break without the employer’s knowledge? In short, are employers required to “police” their employees to ensure that no work is being performed during rest breaks and lunch periods?

Some good news for California employers! The answer is “no.” In the muchanticipated decision in Brinker Restaurant v. Superior Court, issued on April 12, 2012, the California Supreme Court held that the employer’s obligation to provide an off-duty meal break to its employees is satisfied if the employer (1) relieves its employees of all duty, (2) relinquishes control over their activities, (3) permits them a reasonable opportunity to take an uninterrupted 30-minute break, and (4) does not impede or discourage them from doing so. However, employers are not obligated to police meal breaks and thereby ensure that no work is performed by the employee during them. If an employer makes the meal breaks available, but an employee decides to work during the meal break, the employer has not violated its meal break obligations and owes no penalty or premium pay. The holding in this case regarding meal breaks is consistent with a prior court ruling that employers are not obligated to “police” rest periods to ensure that no work is being performed during them.

California employers must be aware that, in such situations, employers still owe regular compensation to an employee for time worked if the employer knows or has reason to know that the employee is working during the meal break. As for timing of meal breaks, the California Supreme Court clarified that a first meal period is guaranteed after 5 hours of work, while a second meal period is required only after 10 hours of work. Employees who work over 5 hours but no more than 6 hours get a meal break unless the meal break is waived by mutual consent of both the employer and employee.

While the Brinker case decision provides clarity and guidance for employers regarding the standards for rest periods and meal breaks, employers should have their policies reviewed by their counsel for compliance with the law. If you have any questions as to how the Brinker case affects your business, please contact Vogt, Resnick & Sherak.