HR Management & Compliance

Meal and Rest Breaks: Important New Case Gives Employers and Employees New Flexibility; Should Mean Fewer Wage and Hour Class Actions

California employers are cheering a significant new appeals court decision that provides guidance on meal and rest period obligations and gives employers and employees new flexibility. The court ruled that you must only make breaks available—you don’t have to ensure that employees take them. We’ll look at the new case, what it means for the wage-hour class action trend in California, and what you can do to make the most of the new ruling in your workplace.

Employees Assail Restaurants’ Break Practices

The class-action lawsuit was filed against Brinker Restaurant Corp., which owns the Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy restaurant chains. Brinker was accused of violating the meal and rest period provisions of Labor Code Section 512 and the Wage Orders with respect to about 59,000 nonexempt employees at 137 restaurants.

The suit charged that the company didn’t give workers a rest break before the first scheduled meal break and, as a result, rest breaks were not in the middle of each four-hour work period. The employees also charged that Brinker discouraged them from taking rest breaks—such as by requiring servers to transfer their tables and tips to another server if they took a break. The suit further alleged that Brinker didn’t ensure that employees took meal breaks.

In addition, they claimed that Brinker sometimes made workers take lunches just an hour into the workday and then required them to go the rest of the day, often more than five hours, without another meal period. The employees also contended that Brinker didn’t pay employees for missed meal and rest breaks (the extra hour of pay required by Labor Code Section 226.7 when an employee isn’t given a break) and for off-the-clock work performed when an employee was already punched out for a meal break.

Rules Allow Flexibility

The California appeals court concluded that a lower court erred in certifying the case as a class action.1 In reaching this decision, the appeals court made these key rulings:

• Breaks must be offered, not forced. Employers must only offer meal and rest periods; they aren’t required to ensure that employees take them. Employers cannot impede, discourage, or dissuade employees from taking breaks.

• Rest period timing. Employers must authorize and permit employees to take rest breaks every four hours (or major fraction thereof, which is the time between 3½ and 4 hours); the break does not have to be in the middle of the work period if it would be impractical to schedule it then. The court emphasized that the number of rest periods an employee is entitled to depends on how many four-hour periods he or she works. So, for example, an employee who works 7½ hours is entitled to only one rest break. “As long as employers make rest breaks available to employees, and strive, where practicable, to schedule them in the middle of the first four hour work period,” said the court, employers are in compliance with California law.

• Early lunching permitted. The practice of “early lunching”—when an employee takes a meal break near the beginning of the work shift—is not prohibited even if it results in an employee working more than five consecutive hours without a second meal break (as long as a second meal break is made available if the employee will work more than 10 hours). The court made clear that the law requires a meal period when a worker is employed for more than five hours in a day, but the law does not specify when the meal period must be taken.

• Off-the-clock work. Employers must compensate employees for off-the-clock work only if the employer knew or should have known an employee was working.

No Class Action

With respect to why the case couldn’t be certified as a class action, the court explained that because breaks must only be made available and not ensured, determining why a particular employee missed meal and rest breaks involved individual inquiries. The off-the-clock claims, too, weren’t amenable to class treatment because whether an employee was illegally required to work off-the-clock involved individual questions as to whether, in each instance, Brinker knew or should have known the employee was working off the clock or improperly changed time records.

Impact of Decision: Good News, But Hold Steady

This ruling is very welcome news for employers, but Anthony Zaller, with the Los Angeles law firm of Van Vleck, Turner & Zaller, says the decision is likely to be appealed to the California Supreme Court. Thus, the appellate court’s analysis of the meal and rest period rules may not be the final word.

Zaller also says that Brinker, should the decision hold up, “puts a stake in the heart of the wage-hour class actions that have plagued California employers over the last few years.” That’s because unless an employer has a blanket practice that bars or discourages all employees from taking breaks, courts will now be required to examine the individual reasons behind why an employee missed a break—and, as a result, most claims for missed breaks won’t be suitable for class treatment.

To avoid problems while the key issues are being resolved, Zaller advises employers to hold steady with current policies and practices that require employees to take all meal and rest breaks and scheduling meal breaks before the fifth hour of work. Also consider adopting a written policy that discourages off-the-clock work. Make sure managers and supervisors know the rules, and review your other policies, practices, andprocedures to ensure there’s nothing that can be interpreted as discouraging or preventing employees from taking breaks.

You can link to the new decision online at