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HR Compliance: New Ruling on Meal and Rest Period Requirements Posted by Lexi Louderback on Thu, May 31, 2012 @ 2:32 PM On April 12, 2012, after more than three years of briefing, the California Supreme Court issued its long awaited decision in the Brinker Restaurant Corp case clarifying that “the employer need not ensure that no work is done during an employee’s meal period.” The issued opinion concludes that the employer satisfied its obligation under the meal period provision “if it relieves the employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” In view of Brinker it becomes more important than ever that the employer have the correct written policies in place and keep accurate time records that show when breaks are taken. Background: The Brinker decision involved a class action against a number of restaurants operated by Brinker Restaurant Corporation, alleging that Brinker failed to provide meal and rest periods required by California law and required employees to work off the clock. There were approximately 60,000 restaurant employees involved in the class. The case centered on the proper interpretation of California meal and rest period laws. What does it mean to provide 30 minute meal periods after one shift longer than 5 hours, and a second for a shift over 10 hours or a 10 minute rest period for every 4 hours worked? 30 minute meal periods: A company’s obligation is to provide employees to take meal periods, but not to “police” employees to ensure they took the meal period. (Provide is the key word, rather than ensure.)


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The meal period must be at least 30 minutes, and the employee must be relieved of all duty and allowed to leave the work premises. Employees must be allowed to take one meal period if they work shifts over five hours, and that meal period must start no later than the end of the fifth hour of work. Employees must be allowed to take a second meal period if they work shifts over ten hours, and that meal period must start no later than the end of the tenth hour of work. The second meal period does not need to be provided within 5 hours of the first meal period. The meal periods can be unpaid.

10 minute rest periods: The employer must authorize and permit 10 minutes on the clock rest periods for its employees. Again, the employer need not ensure they are taken by the employees. • One 10 minute rest period must be provided for every four hours of work “or major fraction thereof.” For example, an employee who works 6 hours or more is entitled to two rest periods, not just one. • The rest period must be provided in the middle of the four hour period “insofar as practicable.” • The first rest period does not need to be provided before the first meal period, if an employer’s specific circumstances prevent it from doing so. However, an employee is entitled to no rest periods for shifts of 3 ½ hours or less. •

Penalties: The penalties for not providing meal and rest period are exceedingly stern. An employee would be awarded 1 hour of premium pay per missed meal or rest break for every work day in the past 3 years, not to mention if the working meal break was overtime, at which point the employee would be awarded time and a half. Employers must also keep in mind that not only must they provide these meal and rest periods, they must also ensure that they are providing these breaks to all non-exempt employees. The penalties


will stretch far beyond premium pay for employees misclassified as an exempt employee or independent contractor. Although an employer is only required to provide the break, if the employer is cognizant of the fact that the employees are not taking the 30 minute meal periods, in which they should be relieved of all duties and free to do as they please, the employer will still be held liable. The only exception to this rule is if the employee does not work more than 6 hours in a day, then the employer and employee may enter into a written agreement by which the employee can waive the meal break requirement prior to the missed meal period. Employers: Having explicit policies that fully comply with the law is imperative for the defense of any claim that is filed against your company. If your company does not currently have these policies in place, it is crucial that they are implemented as soon as possible and that all employees are committed to the new policy. It is also critical that your employees are properly classified, as misclassified employees can collect up to three years of missed wages. For help composing a proper meal and rest period policy or classifying your employees, contact SharedHR.


New Ruling on Meal and Rest Period Requirements