The California Supreme Court has granted review of the recent Brinker Restaurant Corp. decision. In that case, a California appeals court ruled, among other things, that an employer’s obligation to “provide” meal and rest breaks means that the employer must make the break available and not impede, discourage, or dissuade employees from taking it. Employers, however, are not required to ensure that employees take breaks, according to the appellate court ruling.
As a result of the high court’s grant of review, the appellate decision is essentially wiped off the books and is no longer good law. Thus, for solid guidance on what it means to “provide” meal or rest break under Labor Code section 512 and the IWC Wage Orders, employers will have to wait until the California Supreme Court weighs in and issues its own Brinker decision—but that will take some time.
Employers should note that immediately after the appeals court decision was issued in July, the California Division of Labor Standards Enforcement (DLSE) changed its enforcement position and directed DLSE staff to follow the Brinker decision. Now, just days after the high court’s grant of review, the DLSE has issued a new memo stating that the earlier memo can no longer be relied on—but this new memo again directs DLSE staff to continue to follow Brinker’s reasoning while the court review is pending. The new memorandum cites favorably two recent federal decisions interpreting California law to only require that employers make meal and rest periods available, and states: “Taken together, the language of the statute and the regulation, and the cases interpreting them demonstrates compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken.”
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Despite the DLSE’s continued support for the Brinker appellate position, the fact remains that the law on meal and rest periods is unclear. Therefore, to avoid legal problems while these issues are still being sorted out, employers should strongly consider taking a conservative approach to meal and rest periods. Here are four tips to help you stay out of trouble:
- Include in employee handbooks a policy specifying meal and rest break requirements. The policy should contain strong language—”must” and “shall”—to emphasize that you are authorizing employees to take meal and rest periods. As a starting point, you can refer to our newly updated sample Meal and Rest Periods Policy and sample Meal Period Waiver.
- Review internal procedures to determine whether there are impediments to employees taking their required breaks. For example, do you have a timekeeping system that doesn’t have codes for meal periods? Is there heavy pressure for workers to be efficient, which may deter them from taking needed breaks?
- Require employees to record on time cards or time sheets the stop and start times of their meal breaks. And, be sure to review time cards to ensure that meal breaks last for the correct duration.
- Have employees sign off on time cards or time sheets, indicating that they actually took their meal periods of at least 30 minutes and were provided time to take rest periods.