In California: Staffing Agencies and Missed Meal Breaks

Any employer doing business in California knows of Section 512 of the California Labor Code (Cal. Lab. Code 512). Some employers may not know of this provision by its formal citation, but by its effect: it requires meal periods for employees once they have worked five hours in a day.

Employers who provide temporary workers to other companies, however, may have been sweating bullets when it comes to how their employees are treated by that third-party employer. With the specter of joint employment hanging over every staffing company’s head, the question becomes one of degrees; i.e. to what degree must a staffing agency in California ensure compliance by a client-employer with provisions such as Cal. Lab. Code 512?

Last month, the Court of Appeal for the State of California’s First Appellate District issued a decision in the case of Serrano v. Aerotek, Inc. (Cal. Ct. App. 2018). In that case, a temporary employee, Norma Serrano, was placed by a staffing agency, Aerotek, Inc., with a third-party employer, the Bay Bread Co. According to the plaintiff, Ms. Serrano, she was not given the meal breaks specified by Cal. Lab. Code 512.

Arguments for the defense relied, in part, on the seminal 2012 decision in Brinker Restaurant Corp. v. Superior Court (Cal. 2018), in which the California Supreme Court held that an employer must provide proper, compliant meal breaks, but is not otherwise required to enforce whether an employee actually refrains from performing work during this time.

In line with Brinker, the Court in Serrano held that a staffing agency, when it meets certain conditions, is not required to police breaks for employees placed with outside employers, regardless of whether there is an underlying claim against the third-party, and perhaps joint, employer.

Importantly, the Serrano Court found in favor of the staffing agency because it took proactive steps to ensure that the employees whom it placed were provided with meal periods and, critically, were given an opportunity to complain when they were not extended such breaks. Staffing agencies in California should look to these steps in order to insulate themselves from similar claims. Below are the lessons we can learn from the Serrano decision:

  • Maintain a compliant meal period policy and communicate it to employees by training them.
  • Establish and educate employees on a complaint procedure to report if meal periods are denied by the employer with whom the temporary employee is placed.
  • Include a provision in the agreement between the staffing agency and the client company that requires that client to maintain compliance with all federal, state, and local employment laws.

The Court in Serrano relied on these factors in deciding in favor of Aerotek, Inc.