This month’s expert is
Laura E. Innes, an attorney with the
San Francisco
Innes, PC.
Recently, the California
Supreme Court stunned employers when it decided that the one hour of
compensation that must be paid to an employee under state law when an employer
fails to provide a meal or rest period is a premium wage and not a penalty. The
decision affects many issues, but it also leaves unanswered questions,
including what the meaning of the word “provide” is. That is, what must an
employer do to provide a meal period?
The labor commissioner,
in its Enforcement Policies and Interpretations Manual, states that it
is the employer’s duty to compel the employee to cease work during the meal
period, and that the employee’s failure to take a meal period that is provided
does not excuse the employer’s noncompliance. Indeed, the labor commissioner’s
enforcement position is so rigid that it views as violations circumstances in
which the employee takes a meal period just a few minutes shy of 30 minutes.
For example, no “rounding” for meal periods of 27 minutes is permitted. Thus
far, however, the courts have not definitively adopted that enforcement position.
Indeed, some courts have taken an entirely different view on what it means to
provide a meal period.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
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Recent Cases
In White v. Starbucks
Corp.,1 a federal district court
in California recently held that to prevail on a meal period claim under state
law, a plaintiff would have to show that he or she was “forced to forego” a
meal period by the employer. The facts here (discussed in more depth in the
cover story) made this conclusion easy for the court because the employee
admitted that he decided on his own to skip the meal periods.
In another recent case, Perez
v. Safety Kleen Systems, Inc.,2 a district court in
had provided meal periods to drivers was an issue for the jury. Significantly,
the court did not hold that the inquiry ended in the workers’ favor when it was
established that the drivers did not always take lunch. In fact, Perez
sometimes took a meal period, but usually he ate his lunch while driving to
complete his route on time. He admitted that he could have arrived at work
earlier so that he would have had time to stop for a 30-minute meal period and
still finish his route. He preferred, however, to arrive to work at a later
time that didn’t allow for stopping. In deciding that there was a question of
fact as to whether Safety Kleen had provided a meal break to Perez, the court considered
that Safety Kleen had no policy regarding breaks; employees were not told to
take breaks; the time log stressed that employees were on duty throughout the
day; and the employer stressed revenue and productivity. These facts created a
dispute, to be resolved by the jury, about whether the employer had “authorized
or permitted” Perez to take meal breaks.
The meaning of “provide”
is also being considered in a case currently pending in a
Restaurant Corp. v. Superior Court 3 involves an appeal from a court order denying
class certification on the issue of meal breaks. The certification order states
that the case is unsuitable as a class action because an individual analysis
would be required to determine whether the employees waived meal periods (or
not). Thus, the court, by this order, seems to be implying that “provide” doesn’t
mean “force.”
Guidelines for Employers
Currently, the labor
commissioner is holding meetings to invite employees and employers to comment on
this and other open issues relating to meal and rest period enforcement. But it
could be some time before the labor commissioner provides employers with more guidance.
In the meantime,
risk-averse employers should do their best to ensure that the meal periods they
provide are taken. Here are some guidelines to follow:
1. At a minimum,
employers should adopt and disseminate to employees a policy providing meal and
rest breaks as required by the Wage Orders.
2. Employers should
review timekeeping forms to ensure that those forms both facilitate the
recording of the meal break (times out and in) and do not contradict the policy
of providing meal breaks (such as by failing to have a place on the form for
recording breaks).
3. Managers and
supervisors should require employees to take their meal breaks.
_
1 White v. Starbucks
Corp.,
District Court (N.D. Cal.) No. C06-3861 VRW, 2007
2 Perez v. Safety Kleen
Systems Inc.,
District Court (N.D. Cal) No. C05-5338 PJH, 2007
3 Brinker Restaurant
Corp. v. Superior Court (Hohnbaum),
Court of Appeal (Dist. 4) No. D049331