In a long-anticipated decision Brinker vs. Superior Court (April 2012), the California Supreme Court finally clarified the interpretation of Labor Code section 512 establishing employers’ obligation to provide meal breaks to their employees. The main holding of the decision is that employers are not required to enforce a 30-minute meal break policy, but only must provide a reasonable opportunity for an employee to take an uninterrupted off-duty break. In light of this new decision, this article is intended to summarize the current California law on meal periods and provide clear guidelines to employers about their obligations under labor code section 512.
Employer must provide an uninterrupted 30-minute meal break.
California Labor Code section 512 states 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.” The employer satisfies this obligation if:
(1) it relieves its employees of all duty,
(2) relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and
(3) does not impede or discourage them from doing so.
Employer does not have to ensure that its employees stop working during a meal break.
The employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.
Employer is not required to pay for an off duty meal break.
An off duty meal period is one in which the employee “is relieved of all duty during the 30 minute meal period.” 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.
(DLSE Opinion Letter No. 1988.01.05, supra, at p. 1; Dept. Industrial Relations, DLSE Opinion Letter No. 1996.07.12 (July 12, 1996) p. 1.)
If employer fails to provide meal breaks, it must pay premium.
When an employer requires its employees to work for five hours or more, an employer has three choices:
(1) it must afford an off duty meal period;
(2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or
(3) obtain written agreement to an on duty meal period if circumstances permit.
Failure to do one of these will render the employer liable for premium pay. (§ 226.7, subd. (b); Wage Order No. 5, subd. 11(A), (B).) Employers must pay an additional hour of pay at the employee’s regular rate of pay for failure to provide a meal or rest period. Lab C §226.7; Wage Order Nos. 1-2001-16-2001 (8 Cal Code Regs §§11010-11160). This additional hour does not count toward overtime. Murphy v Kenneth Cole Prods., Inc. (2007). An employer is liable to pay premium pay for a maximum of one meal period per day. United Parcel Serv. Wage & Hour Cases (2011)
On duty meal breaks are only permitted in certain circumstances.
An on-duty meal period shall be permitted only (1) when the nature of the work prevents an employee from being relieved of all duty and (2) when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”
Employer must pay for on-duty meal breaks at the employee’s regular rate of pay.
The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations and owes no premium pay, but nonetheless owes regular compensation to its employees for time worked. Morillion v. Royal Packing Co., (2000)
Meal period timing
Absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee‟s 10th hour of work.
In Brinker v. Superior Court (2012), the California supreme court explained that Labor code section 512 and IWC’s Order No. 5 d not require an employer to provide a meal break every 5 hours. The statute simply states that employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.
For example, if an employee starts working at 9AM and takes his or her first meal break at 12PM, the employer is not required to provide a second meal break by 5PM. However, once the employee reaches his or her 10th hour of work (in this example, it would be at 7PM), the employer must provide a second 30-minute meal break.
Even though Brinker’s ruling on meal breaks is in favor of California employers, employers still must be careful when enforcing meal break policies. There are a number of pitfalls that may subject employers to meal break liability.
Employers must establish and implement a meaningful and effective meal break policy. The policy has to provide employees with a reasonable opportunity to take an interrupted 30-minute meal break. If an employer fails to provide such a break, employees are entitled to one additional hour of pay.
If the nature of employer’s business does not allow employee to take a meal break, the employer must get employee’s written consent to have “on-duty” meal breaks instead. Such breaks are paid at the employee’s regular pay rate. A failure to obtain employee’s written consent is a violation of Labor code section 512.
Employers must document their meal break policy. All hours worked by employees must be accurately recorded and kept for at least three years. Employers must record the time during which employees take their lunch breaks.