Wonderful News for Employers with regard to Rest and Meal Breaks
from Larry Levy, Employee Relations Management
As anticipated, the California Supreme Court in Brinker v. Superior Court issued a far reaching decision and set the standards for meal and rest period. The Court set forth fairly easy-to-follow guidelines for compliance with the law that most employers are already utilizing. The issue that posed the greatest interest to employers -- whether an employer meets its obligations to “provide” a meal period by simply making one available for employees to take – was decided in the employer’s favor.
Please note the Court was only addressing rest and meal period as they affect non-exempt and not exempt employees.
In the past employers were challenged to “enforce” as well as “provide” an uninterrupted meal period. On occasion employees successfully argued that it was the employer’s responsibility to “police” the meal break to ensure that every employee actually took the required meal period. It was not acceptable that an employer simply provide for time off from work for the meal period but to actually enforce it. There were several occasions where I represented employers at the Department of Labor Standards Enforcement where the employer’s rigor with enforcing the meal period came into question. Suffice to say, the issue was whether the employer fulfilled his or her obligation by “providing “the meal period or whether the “employer had to actually enforce it”. That has thankfully changed.
The Court made a number of rulings regarding class certification that will not be the subject of this article.
The following is a summary of the of the Court’s orders:
Number of Rest Periods Owed
The Court answered three questions about rest periods:
1. How many rest periods must be provided in a shift,
2. whether the rest period must occur at specific times within the workday, and,
3. whether the trial court was correct to certify the rest periods claims.
Regarding the number of rest periods the Court stated that a non-exempt employee is entitled to a 10 minute paid rest break for every four hours of work. The exception occurs when the worker’s shift is 3.5 hours or below. For a shift between 3.5 hours and 6 hours the worker is entitled to one rest period. For a shift between 6 and 10 hours the worker gets two ten minute paid breaks. For a shift between 10 and 14 hours the worker gets three paid rest breaks.
Timing of Rest Periods
The Court held that generally the employer should set the rest break near the middle of the four hour block of time, but the employer “may deviate from that preferred course where practical considerations render it unfeasible”. There is no particular rule the rest period should come before the meal period.
Meal Periods
This is a huge victory for California employers. The Court stated that non-exempt employees are entitled to a thirty-minute uninterrupted meal break for every five hours of work. To provide an off-duty meal period consistent with California law means to give the employee 30-minutes where she or he is free to do what she or he wants, whether or not the employee chooses to use the time for work.
“The meal period requirement is satisfied if the employee (1) has at least 30-minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please”.
The employer cannot coerce or pressure employees to skip their meals.
“The employer must not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks”.
This does not mean that employees who feel that they should not take meal breaks because they have a lot of work to get done have a valid claim (law suit) for meal breaks. It means you cannot have a phantom policy of meal breaks with the actual practice of pressuring your employees not to take them.
Timing of the Meal Break
There was some concern if you provided the meal break early in the shift you would be obliged to offer a second meal period five hours later. That didn’t fly. The Court stated (1) a first meal break must be after no more than five hours of work, and (2) a second meal break must be provided after no more than 10 hours of work.
Summary of New Meal Break Laws
The Court explained that, while California law requires employers to provide employees with meal breaks, it does not compel employers to ensure employees cease all work during such breaks. The Court held that California law merely requires employers to provide employees with an uninterrupted 30-minute duty-free meal period. During this period, employees may engage in any activity of their choosing. As the Court stated: “The employer is not obligated to police meal breaks and ensure no work thereafter is performed”.
Recommendations
1. Although you can enjoy this welcome relief don’t let your guard down.
2. Continue with your policy encouraging employees to take their thirty minute unpaid meal break between the fourth and sixth hour of their eight hour day.
3. Ensure all your non-exempt employees record on their time sheets, time cards on time clocks the following:
· The time they commenced work,
· The time they started their meal break,
· The time the meal break concluded, and finally
· The time they concluded work at the end of their shift or workday.
4. If employees work through their meal period ensure they are compensated including overtime.
5. Do not pressure or coerce your employees to work through their meal period.
6. Similarly, do not insist employees remain on the premises during their meal period. This is their time and they can do whatever they wish during the meal period.
7. Have your rest and meal period policies clearly defined in your employee handbook.
8. Nothing we have discussed affects exempt employees who are not impacted by these laws.
9. Whose permission should an employee ask to begin his or her meal period?
10. Define whether an employee has a thirty minute or full hour for the meal break.
11. Can an employee waive their meal periods, work through lunch and leave an hour early?
12. Do you have the right to insist an employee have their meal period away from their desk?
13. What happens if an employee answers phones during their meal break?
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Larry Levy is President of Employee Relations Management LLC, he can be reached at Toll Free: (415) 892-1497. Email: llevy@employeerelationsmanagement.com. http://employeerelationsmanagement.com