On April 12, 2012, the California Supreme Court announced its decision in the much-anticipated Brinker Restaurant case.  That decision, established various legal principles that provide a roadmap for personnel policies that, if carefully drafted and enforced, allow employers to avoid the catastrophic liability exposure arising from unpaid meal and rest breaks.

What follows is a general discussion of some of these, and various recommendations that offer powerful protection to employers from these claims.

In general, Labor Code, section 512 provides the basic meal break requirement.  Significantly, these requirements are based on hours worked, not hours scheduled, as follows:

• Five hours or less – no meal break required;

• Over five hours – one duty-free break of 30 minutes;

• Over five hours, but less than six – employee can waive break;

• Over five hours, and over six – employee cannot waive break.

Section 512 requires a first meal period to start no later than the end of an employee’s fifth hour of work and, if applicable, a second meal period to start no later than the end of the tenth hour of work. Break waivers are not required to be in writing, but for the employer’s protection they should be.  Employers are encouraged to schedule shifts so that, if an employee works slightly more than the threshold number of hours, an additional break requirement is not inadvertently triggered.

Cases decided since Brinker have continued to develop the legal principles articulated in that landmark case.  Perhaps foremost among the issues resolved by the Brinker case was the vexing question of whether employers are required to 1) “ensure“ that employees actually take breaks, or 2) merely provide employees the opportunity to take them.

The Brinker Court concluded that employers cannot be responsible for guaranteeing that employees take breaks.  Instead, employers are required to provide duty-free breaks during which employers relinquish all control over employees.

Before celebrating, however, employers should be aware of several cautionary considerations.  For example, some courts have held that, in situations where the employer (or any of its supervisors) “knew or should have known” that employees were working through their breaks, liability for unpaid breaks may attach.

For this reason, it is in the employer’s interest to take reasonable measures, in practice, to require, (if not “ensure”) that employees take their breaks.  This starts with several carefully-drafted personnel policies. 

For example, written policies should clearly state that employees will be provided with duty-free breaks, during which the employer relinquishes all control over employee activities, and specifically providing that employees are free to leave the workplace.

Policies should further emphasize, among other things, that no supervisor or manager is authorized to assign work to, or otherwise restrict the activities of employees during their breaks, and that any attempt to do so must be reported to a specified individual immediately.  Handbook policies should further state that, if employees perform any work during their breaks, this must be reflected on applicable time cards and related attendance documents.

Under limited circumstances, breaks that are not duty-free are permitted, if the following conditions are satisfied:

1. The nature of the work prevents an off-duty meal period;
2. The employee voluntarily agrees, in writing, to a non-duty-free meal period; and
3. The employer pays for any work performed during the meal period, including premium overtime compensation, if applicable.

The availability of this limited exception depends on the nature of the work involved, and must not be premised on the convenience of either the employer or the employee.

With respect to rest breaks, specifically, non-exempt employees must be provided with a break consisting of 10 minutes’ net rest for each four hours of work, or major fraction thereof.  It is recommended that personnel policies state this rule, specifically including the highlighted phrase.

Rest breaks must be provided in the middle of the shift, if practicable.

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Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 37 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 37 years.

For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.

You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/

Heads Up! Is not intended as a substitute for legal advice and its content is provided for discussion purposes only.  Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.