How Does the Brinker Decision Affect an Employer’s Obligation to Provide Meal and Rest Breaks?

In 2012, the California Supreme Court finally handed down its highly-anticipated decision in Brinker Restaurant Corporation v. Superior Court, 53 Cal. 4th 1004 (2012) (“Brinker”).  The case clarified what an employer’s duties are regarding its employees meal and rest breaks.  With review granted in 2008, the long-awaited decision resolved the substantial confusion surrounding employers’ obligations in this area.  Here, we will address some of employers’ most frequent questions as to how best to comply with the law.

What Obligation Do Employers Have to Give Employees a Meal Break?

To comply with California law and the applicable Wage Orders, employers are required to provide all non-exempt employees who work over five hours in a day with an uninterrupted 30-minute meal break.  To satisfy this obligation, employers must:

• Relieve the employee of all job duties;

• Relinquish control over the employee’s activities; and

• Permit employees a reasonable opportunity to take an uninterrupted 30-minute break.

When Do Employers Need to Provide the 30-Minute Meal Break?

The Brinker Court clarified that the first 30-minute break must occur no later than five hours after the employee begins work.  When the break is made available is entirely discretionary, just so long as it is provided within the first five hours of work.  If the employee is working less than six hours total, the employer and employee can agree in writing to waive the meal break.

The Court also held that employers are not required to provide a second 30-minute meal break within five hours of the first.  As the Court explained, this could easily lead to scenarios where an employee might take a 30-minute break only two hours into a shift, and then the employer would be required to provide another meal break before the end of an eight hour day.  Instead, the Court stated that the employer is only required to give a second 30-minute meal break if the employee works ten hours or more.

Do Employers Need to Police Employees to Ensure That they Take Their Breaks?

The Brinker decision clarified that while employers are required to “provide” a meal break, they are not required to “ensure” that the employee refrains from working during his or her break.  Once the 30-minute meal period begins, the employer relinquishes control over the employee and is not required to police the break room to guarantee that employees are not engaged in any work-related conduct.

Note that under Brinker, while employers are not required to police employees’ breaks, they will, however, be held liable if they have policies which discourage employees from taking their meal breaks.  Specifically, if the employer knew or should have known that employees missed breaks, they face liability.

What Obligations Do Employers Have to Give Employees Rest Breaks?

The Brinker Court also explained that employees are “permitted” to take a 10-minute rest period, every four hours of work, “or major fraction thereof.”  In layman’s terms, this means employees are entitled to one rest period for shifts of 3.5 to 6 hours, two rest periods for shifts of more than 6 hours and up to 10 hours, three rest periods for shifts of more than 10 hours up to 14 hours, and so on.  (After the 10 hour mark the employee is also eligible for another 30-minute meal break.)

What Are the Penalties For Not Complying With The Brinker Standards for Breaks?

When an employer does not provide an employee with a required meal break, it must pay the employee one hour of pay at the employee’s regular rate of compensation for each workday that the employee does not receive his or her meal break.

What Can Employers Do to Protect Themselves from Liability?

Noncompliance can be costly, especially if it is widespread across the company such that there is exposure to class action litigation.  With that in mind, there are a few things employers can do to limit their exposure.

First, employers should comply with the laws as explained above.  With so much litigation in this area, any potential loopholes should be regarded with trepidation.  Second, employers should have their meal and rest break policies in writing and easily accessible to employees.  Third, employers should provide an accurate time keeping mechanism that permits employees to record their breaks and note if they missed a meal break.  (For this reason, employers are advised against engaging in an auto-deduct practice whereby the employer assumes that employees have taken their breaks, and deducts 30 minutes from their time, thus placing the burden on the employees to report if they did not take a break.)  Finally, while Brinkerclarified that employers do not need to police their employees, a wise business practice would encourage employees to take their breaks in a separate room, or to leave the place of employment entirely in order to discourage employees from working through their breaks.




employment litigation

business risk assessment

wage & hour

rest and meal breaks