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Meal and Rest Break Clarification Coming Soon—Really

Columnist: Scott Gerien
May, 2012 Issue
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Scott Gerien
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Although I’m not a labor and employment lawyer, labor and employment issues are of constant concern to all of my clients. After all, while trademark issues may creep up only every once in a while for many companies, any company that employs even a single employee must deal with legal issues related to that employment. Therefore, I thought this month’s column should deal with a topical issue in this area.
 
Fortunately for me, I happen to work with some of the best labor and employment attorneys in the North Bay. For this column, I turned to my colleague, Jennifer Phillips, who’s based in our Santa Rosa office.
 
According to Jennifer, one of the more seemingly mundane employment topics, employee meals and breaks, is also one of the areas most fraught with employer risk and one of the areas where the law is presently evolving.
 
By the time this article runs, California employers may finally have an answer to a question that’s dogged them for years: Can they trust their employees to take breaks and lunches on their own or is something more proactive required? By mid-April (assuming no more delays) the California Supreme Court will issue its much-anticipated opinion in Brinker v. Superior Court. This ruling should clarify an employer’s obligations concerning meal and rest periods for non-exempt employees. Small and large business owners alike have waited for this opinion for the past four years, while millions of dollars in penalties and attorneys’ fees have hung in the balance.
 
California law plainly states that non-exempt employees who work a certain number of hours are entitled to a 30-minute unpaid meal break and one or more 10-minute paid rest periods. What’s far less clear is when the breaks must be taken, whether an employer must force its employees to take a break and how many are necessary. The stakes are high. Each time an employer fails to provide a meal or rest period, the employer is subject to a penalty equaling one hour of the employee’s regular rate of pay, up to two hours per day. Penalties can stretch back to four years. For an employer with five hourly employees who each make $10 per hour, the potential damages for a four-year period can exceed $20,000, plus attorneys’ fees. Not surprisingly, hundreds of class action lawsuits hinge on the court’s decision, which will clarify three important issues for employers.
 
1. Must employers ensure employees take their meal breaks or simply make them available? The first issue is perhaps the most hotly discussed. Most California employers trust their employees to take a lunch break in accordance with a written policy. If employers are required to ensure that employees take their meal periods, each employer will need to implement policies and procedures forcing employees to take meal periods and disciplining/terminating those who do not. As a Supreme Court Justice astutely pointed out during oral arguments, this would have the effect of punishing the best and most conscientious employees based on choices they make. On the other hand, if employers need only provide meal periods, any risk associated with a missed break is minimized. To claim any damages for a missed break, an employee would need to prove that the employer failed to make the meal break available and that they missed it.
 
2. Must employers control when and how many times a day an employee eats? The next issue has perplexed employers and lawyers since the law was enacted. Labor Code section 512 provides that an employer may not employ an employee for “a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes…An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes….” Unfortunately, this language creates more questions than answers. Must employees take their lunch before the fifth hour of their shift? And if they fail to do so, are they entitled to an extra hour of pay because the meal is “late”? For most employees, this level of strict application bears little relation to their workday. Similarly unanswered is whether employees who take an early lunch are entitled to a second 30-minute meal period because they will work more than five hours after the first meal, even though they will work less than 10 hours for the day. Given the flexibility and trust many employers place in their employees to schedule their own workdays, the court’s decision on this issue has the potential to drastically change the ordinary workday.
 
3. How many rest periods must an employer provide in a given work period and do they have to be taken at the middle of the work period? Finally, the court will decide how many 10-minute rest periods an employee is entitled to in a work period, and whether an employer can require an employee to take the rest periods at particular times during the work period. Once again, the applicable statutory language is less than clear. The law states, “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3.5) hours.”
 
As part of its decision, the court should clarify whether an employer has to provide the rest period in the middle of each work period or whether, for practicality purposes, the breaks can be toward the beginning or end of the time periods, and how many 10-minute rest breaks are required during any given work period.
 
It’s unclear whether the court’s April decision will answer most or all of these questions. What is certain, however, is that employers and their lawyers alike will need to quickly digest and implement the new rules, and a ruling that has taken a four-year odyssey through the courts will send shockwaves through California’s businesses. So, North Bay employers should check for the opinion in this case or ask your employment counsel.


 

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