Blog Post / Employment Advisor

California Employers Not Liable When Employees Voluntarily Skip Meal Periods

By Janet Grumer and Judith Droz Keyes

04.13.12

On April 12, the California Supreme Court announced its much-anticipated decision in the Brinker International Restaurants case, and it’s good news for California employers. The Court unanimously ruled that an employer’s duty to “provide” a meal or rest period under California law means that employers must “make available” meal and rest periods, but employees can voluntarily choose not to take them. In other words, the employer need not “police” employees to ensure they are not performing work during meal periods.

Under the Court’s ruling, an employer fulfills its obligation to “provide” a meal period if the employer has a policy that permits meal periods of at least 30-minutes duration and (a) relieves employees of all duties during meal periods, (b) relinquishes control over employees’ activities, including the ability to leave the premises during meal periods, (c) provides employees with a reasonable opportunity to take meal periods, and (d) does not impede or discourage employees from taking meal periods.

Meal Period Timing

With regard to timing, the Court declined to impose a blanket requirement that employees must not be permitted to work more than 5 consecutive hours without a meal period, as the Labor Commissioner has previously enforced. Instead, the Court said that the first meal period must begin no later than the end of the 5th hour of work/start of the 6th hour of work, and the second meal period must begin no later than the end of the 10th hour of work/start of the 11th hour of work. But the requirement of allowing no more than 5 hours to pass (from the end of the first meal period to the beginning of the second) is no longer necessary, as there is no requirement that the second meal period begin within 5 hours of the end of the first.

Rest Periods

For rest periods, California employers have a duty to make a “good faith effort” to provide employees with 10-minute rest periods in accordance with the Wage Orders, and that to the extent “practicable,” rest periods should occur at the middle of each 4-hour work period. But the Court declined to impose any requirement concerning the order in which meal and rest periods must be taken, and declined to require that rest periods occur precisely in the middle of each 4-hour work period. The Court also provided simple rest period instructions for employers to follow. Employees working on a workday of:

More than 3.5 hours, up to 6 hours, get one paid 10-minute rest period;
More than 6 hours, up to 10 hours, get two paid 10-minute rest-periods;
More than 10 hours, up to 14 hours, get three paid 10-minute rest periods; and so forth.

Meal and Rest Period Premium Pay

If an employer has appropriately provided meal and rest periods, but an employee chooses to work anyway, the employer will have to pay for the time worked, but will not be liable for the “premium pay” hour (which most employers refer to as a meal or rest period “penalty”), unless the employer causes its employees to miss a meal or rest period due to scheduling or other employer needs. The California Court of Appeal has held, only a maximum of one meal period penalty plus one rest period penalty for any given workday would be due to an employee, regardless of how many meal periods or how many rest periods are missed.

Best Practices

To defend against litigation over meal and rest periods, employers should implement the following:

Have a clear and correct policy on meal and rest periods.
Plan for meal and rest periods and relieve employees of their duties for the required time periods, and permit them to leave the premises for meal periods.
Do nothing to impede employees’ ability to take meal and rest periods.
Maintain proof that employees were afforded the right amount of time at the right intervals.
Have employees sign waivers of meal periods that can be waived.
Pay the 1-hour premium payment when an employer causes the employee to miss a meal or rest period.

What Could Still Go Wrong?

Wage and hour class action litigation is still possible and, indeed, probable. For example, plaintiffs may allege that any of the following form the basis of a wage/hour class action lawsuit:

Not having a clear and correct meal and rest period policy or lacking evidence that it has been communicated to employees;
Having an appropriate policy, but management not following it or communicating that following it is discouraged;
Knowingly allowing an employee to work during meal periods, but failing to pay for the time worked;
Causing an employee to miss meal or rest periods, and failing to pay the one-hour “premium” pay as a penalty, or shortening it to less than 30 minutes;
Scheduling or assigning so much work or so tight a completion schedule that it would be impossible to get it done without skipping a meal or rest period; or
Lacking proof that a group of employees waived their meal periods to the 6-hour mark or for the second meal period.