On April 12, 2012, the California Supreme Court decided
Brinker Restaurant Corporation v. Superior Court
(Hohnbaum), pending since 2008. We reported on the decision in
a Legal Alert, and in an extended webinar, which you can access
here and
here. Because it's such a significant decision, more
remains to be said.
Much-Needed Clarification
California recognizes two kinds of meal periods: off-duty and
on-duty. An on-duty meal period is permitted only when the nature
of the work prevents the employee from being relieved of all duty,
the employee is paid, and there is a written agreement with a right
to revoke the agreement. Unless there is a valid on-duty meal
period agreement, an employer is required to affirmatively relieve
employees of duty during a meal period of at least 30 uninterrupted
minutes (e.g., must be permitted to leave premises).
Although the Brinker decision did not change many of
the compliance standards for meal periods, the rules were clarified
in vitally important particulars:
First, the Brinker court handed down a clear standard
regarding an employer's duty to "provide" a meal
period. Specifically, an employer satisfies this obligation if it
1) relieves its employees of all duty; 2) relinquishes control over
their activities; 3) permits them a reasonable opportunity to take
an uninterrupted 30-minute break; and 4) does not impede or
discourage them from doing so. Of course, the devil is in the
details.
Second, during a permitted meal period, "[t]he employer is
not obligated to police meal breaks and ensure no work thereafter
is performed." In fact, the Court made clear that as long as
an employee was relieved of duty and free to do what the employee
chooses to do during the meal period, work could continue strictly
on the employee's part without the employer committing a
violation of the meal-period laws. That being said, many employers
may prefer to keep the reins tight. Indeed, some types of
industries may require tighter control for administering meal
periods due to the nature of the work.
Employers may choose to prohibit work during off-duty meal
periods, because 1) they are still required to pay for all work
"suffered and permitted" to be done; 2) meal periods that
are shortened may not be "bona fide" under the Fair Labor
Standards Act, and thus, also would have to be paid working time;
and 3) without proper documentation, it may be difficult to defend
negative inferences from time records that contain short or late
meal periods. Again, the outcomes will be very fact specific.
Third, the Court rejected the "rolling-five" rule
which would have required a meal period for every five hours of
work, resulting in more than two meal periods per day when
employees work more than two five-hour segments in a work day
(compare rest periods, where a 10-minute rest period is due for
each and every 4 hours of work or major fraction thereof).
The Court explained when meal periods should be permitted to
commence throughout the work day. Specifically, the first meal
period must be permitted to commence no later than after five hours
of work or the start of the sixth hour of work (5.0 hours on the
clock). The second meal period must be permitted to commence no
later than after ten hours of work or the start of the eleventh
hour of work (10.0 hours on the clock).
Reading together this strict timing requirement with the more
relaxed definition of what it means to "provide" a meal
period, potential pitfalls exist. Employers are not automatically
liable when employees unilaterally take a late meal period
otherwise provided timely, but be very cautious in scheduling meal
periods in a manner that pushes, or may tend to push, employees
involuntarily into commencing meal periods after the deadlines.
As long as you understand what Brinker's ruling regarding
meal-period compliance means, you should be able to maneuver around
the potential landmines that remain and develop an interactive
policy with permissible flexibility that fully complies with the
law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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