Immediate Review of California Policies Compelled by California Supreme Court Clarification of Meal and Rest Period Obligations

All employers with persons performing work in California should immediately seek counsel to review the text of their policies communicating meal and rest period rights to employees and to ensure that their practices are consistent with the law as clarified by the California Supreme Court’s decision on April 12, 2012 in Brinker Restaurant Corporation v. Superior Court.
In brief summary, the highlights of the decision include the following clarifications regarding the nature and timing of a California employer’s legal obligations relating to meal and rest periods:
Meal Periods
·        Subject to some exceptions, California law generally requires an employer “to provide” a meal period for any shift longer than five (5) hours, and a second meal period if the shift exceeds 10 hours, and so forth.
·        An employer meets its obligation “to provide” a required meal period by affording the employee “uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”  A half-hour period means no less than 30 minutes.
·        An employer is not obligated to police meal breaks and ensure that no work thereafter is performed.
    o   This is one of the most important clarifications Brinker provides.  A contrary interpretation that would require employers to actively prevent an employee from performing work during a meal period was problematic for employers and employees alike. Under the court’s more reasonable approach, the employer still has the duty to “provide” required meal periods, by relieving the employee of all duty, but if the employee nonetheless does work during the meal period (and the employer knows or should know that this occurs), then the time worked would remain compensable at straight time. However, the much more onerous California meal period penalties would not also arise, so long as the employer relieved the employee of all required duty during the lunch period and did not coerce or pressure them into working during a meal period.
·        A first meal period must start no later than the end of an employee’s fifth hour of work, a second meal period no later than the end of an employee’s tenth hour of work, and so on.
·        The court rejected the argument that an additional timing requirement exists that would ensure that no time period of more than five (5) hours occurs without a meal period, which can occur when an employee takes their first meal period relatively early into a shift, and may take a second meal period more than five (5) hours later.
·        The case did not alter existing law that permits an employee to voluntarily waive a meal period during a shift of no more than six (6) hours (or to waive a second meal period in a shift of no more than 12 hours, if the first meal period was not waived), nor that law permitting employers to obtain a voluntarily written agreement to provide an on-duty meal period in appropriate circumstances.
Rest Periods
·        Employees are entitled to a 10-minute rest period for shifts from three and one-half to six hours in length, a second 10-minute rest period for shifts of more than six hours up to 10 hours, a third 10-minute rest period for shifts of more than 10 hours up to 14 hours, and so on.
    o   This interpretation resolves any uncertainty over the meaning of Wage Order text requiring employers to authorize and permit rest periods “at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof,” coupled with the proviso that “a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours.”  The flaw in the employer’s policy that convinced the Supreme Court to approve certification of a class action on rest period claims in Brinker was omission of the phrase “or major fraction thereof.”  The importance of reviewing California policies immediately for this and other arguable “flaws” is now clear.  Colorado employers may observe that Colorado’s Minimum Wage Order (applicable only to specified industries) contains the same phrase to define the rate at which rest periods must be authorized and permitted, but does not include a proviso regarding shifts of less than three and one-half (3 ½) hours.
·        Even before Brinker, employers were not required to police employees to ensure that rest periods are taken, and this remains so after Brinker.
·        As to timing of rest periods, employers are “subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” 
   o   The court rejected the argument that the law may require that a first rest period occur before a first meal period, indicating instead: “Rather, in the context of an eight-hour shift, ‘as a general matter,’ one rest break should fall on either side of the meal break.  Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.”
The Brinker decision provides long overdue and greatly appreciated clarity for California employers regarding the nature and timing of their meal and rest period obligations.  The rules announced by the court are reasonably clear, easy to follow, and helpfully reject hyper-technical alternative interpretations that would have imposed more burdensome employer duties.  The decision also contained clarification of certain aspects of class action litigation procedure, which may be discussed in a forthcoming MSEC Bulletin.