WORKPLACE LAW -
New Guidance Regarding Meal Periods

Question:

As an employer with non-exempt employees, I thought I understood the rules about when employees need to take their meal breaks. But lately I am not sure. I am hearing and reading conflicting information. Can you clarify the current rules for me?

Answer:

There has been a lot of conflicting information this year concerning meal periods. As you may know, in July 2008, the Fourth District Court of Appeal decided the Brinker Restaurant Corp. case, which changed the interpretation of the legal requirements concerning an employer’s obligation to provide meal periods for non-exempt employees. The Brinker court stated that an employer complies with its obligation to "provide" meal periods if the employer makes the meal periods available to employees and provides the opportunity for employees to take them.  The Brinker decision also clarified that employers are not required to provide a “rolling five hour” meal period by providing a meal period within every consecutive five hours of work. The Brinker case was appealed and the California Supreme Court granted review, which means that the case cannot be relied on and is not controlling law.

The California Labor Code and the Industrial Welfare Commission wage orders set forth the general requirement that every non-exempt employee who works six hours or more in a workday must be provided a 30-minute, off duty meal period. Some exceptions apply to employees in certain circumstances. Before the Brinker case, the Department of Labor Standards Enforcement (DLSE), which enforces wage and hour law in California, took the position that the requirement that the employer “provide” the meal period means that the employer must make sure the employee actually takes the meal period before the employee completes the first five hours of work in the work day.

In 2007 and 2008, federal court cases developed a broader interpretation. Earlier this year, the U.S. District Court for the Central District of California heard a case involving Federal Express delivery drivers who were allegedly pressured to make deliveries as quickly as possible, and as a result they were unable to take meal and rest breaks within the time required by law.  One employee sued, seeking class action status to proceed on behalf of class members who missed their meal and/or rest breaks.  In denying class certification, the court held the requirement that FedEx "provide" meal periods only meant that it had to make meal periods available to employees.  The court held that the law “does not suggest any obligation to ensure that employees take advantage of what is made available to them."

Adding to the confusion, the California legislature proposed and adopted numerous partial reform proposals this year, but Governor Schwarzenegger vetoed them all, saying that he was waiting for comprehensive reform in this area.

On October 23, 2008, the DLSE issued a memorandum concerning the court rulings on meal periods. The DLSE states that it expects the Supreme Court to clarify whether the California Labor Code and the Industrial Welfare Commission wage orders impose an affirmative obligation on employers to ensure that employees actually take their meal period, or whether the employer’s obligations do not go that far and merely require the employer to make the meal period available to the employee and afford the employee the opportunity to take the meal period.

The DLSE further states that until the Supreme Court decides this fundamental issue, it is adopting the following positions:

  • Employers must provide meal periods to employees and may not discourage or prevent employee meal breaks, but they do not have an additional obligation to ensure that such meal periods are actually taken.
  • Employers may not merely assume meal periods have been taken.
  • Employers must keep records of all meal breaks taken.
  • The first meal period must commence prior to the end of the fifth hour of work, unless otherwise expressly permitted by the applicable wage order.
  • A second meal period must be provided for an employee working more than 10 hours per day, except that if the total hours worked in a workday are no more than 12, the second meal period may be waived if the first meal break was taken, and both employee and employer agree to the waiver.
  • Employers are not required to provide “rolling five hour” meal periods.

Employers currently have two options when providing meal periods to their non-exempt employees. The most conservative approach is to continue to ensure that non-exempt employees take their meal and rest periods, and keep accurate time records to prove that employees timely took their meal periods. Alternatively, employers can make the meal periods available to employees, provide the opportunity for employees to take them, and keep records to show that the meal periods were timely provided.
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