In California, an employee that works more than five hours a day must be provided with a meal break of not less than 30 minutes. (IWC Orders; Labor Code Section 512.) A second meal break of not less than 30 minutes is required if the employee works more than ten hours a day. (Labor Code Section 512.) If an employer fails to provide an employee with a required meal break, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the meal break is not provided. (Labor Code Section 226.7.)
The California Supreme Court is now reviewing the case of Brinker v. Hohnbaum. The decision is expected to decide whether California law requires employers to ensure that employees take a full 30 minute meal break and are liable even if the employee voluntarily chooses to skip the meal break, or whether employers are simply required to provide employees the opportunity to take such breaks. In a related action, the Supreme Court depublished the recent decision of Hernandez v. Chipotle, which had held that employers need not ensure employees take meal breaks so long as they are provided an opportunity to take the breaks. As a result, the implication is that the Supreme Court may decide that meal breaks are mandated and an employer that allows an employee to skip the break will be liable for damages.
Pending the final decision of the Supreme Court on this issue, it is recommended that:
- Employers should continue to have a strict written policy on providing meal and rest breaks and continue to monitor that employees are actually taking meal breaks.
- Employers should make sure management knows about and enforces these rules.
- Employers should record meal breaks.
- Employers should adopt policies that require employees to come forward to report if they have been forced to work through a meal break.
- Employers should have all employees sign and acknowledge receipt of the meal break policy.
Until the Supreme Court issues its decision on the Brinker case, employers should take proactive steps to ensure that employees are taking the mandated meal breaks. Moreover, because it appears likely that the decision in Brinker will establish this requirement on the part of employers, by implementing the proper policies now, employers can avoid potential liability in the future.
Employers that believe they may be exposed to liability or have questions that are not answered by this analysis are advised to contact a labor and employment lawyer or business attorney.
