A surge in class-action lawsuits for inadequate employee meal and rest periods has sparked debate and questions for the past few years. Confusion about whether an employer is required to make meal periods available to employees or whether the employer is required to ensure employees actually take breaks has created a sense of ambiguity for employers, employees and law-makers. For employers in California the answers to these questions came in the form of a ruling in the case Brinker Restaurant Corporation v. Superior Court. According to the Brinker case, Employers have a duty to provide meal and rest periods but are not required to ensure work is not performed during that time.

According to the requirements of the California Labor Code and Wage Orders, Employer obligations regarding meal and rest breaks are:

•  Meal Breaks: Employers must provide non-exempt employees with a thirty (30) minute uninterrupted meal break after five (5) hours of work (unless the employee’s workday is completed within six (6) hours). A second meal period of 30 minutes can be provided if an employee works more than ten (10) hours per day. The second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. 

• Rest Break: Employees are entitled to 10 minutes of a rest period for shifts three and one-half (3 ½) to six (6) hours in length, 20 minutes break for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours and so on.

• On duty Meal Period: An “on duty” meal period is permitted only when the nature of the work prevents an employee from taking a break. Unless an employee is relived of all duties during the 30 minute break period, the period is considered to be “on-duty”. Both parties must sign an agreement stating the employee has the right to revoke the “on-duty” arrangement at any time and will receive compensation for the hour worked. The test to determine whether a job requires “on-duty” meal periods is based on objective factors (i.e. the employee is the sole worker on site). Examples of jobs that meet these criteria include a security guard stationed alone at a remote site or a sales clerk in an all-night convenience store.  

• Payment for On-duty Meal periods: When an “on –duty” meal period is implemented, the employer must pay for the additional hour of work at the employee’s regular rate of pay. The additional hour is not included in the total hour worked for purposes of overtime calculations.

• Break Areas: Employers must provide employees with a suitable place designated as the rest/eating area when requested to take meal breaks on Company premise. This area must contain adequate supply of potable water, cleaning materials (i.e. soap), and single use towels for hand washing. Employers in industries such as onsite construction, drilling, logging and mining are excluded from compliance with this requirement.

• Meal Period Timing: Employers are required to secure hot food and drinks or equipment for heating food and providing a suitable location designated for eating meals, if the meal period occurs on a shift beginning or ending at or between hours of 10:00pm and 6:00am.

Best Practices

The following Best Practices are geared to assist Employers seeking compliance with meals and rest period obligations:

• Relieve employees of all duties by relinquishing control over their activities and allowing a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please).
• Do not impede or discourage employees from taking their meal periods. Educate Managers/Supervisors on the provisions of the law to discourage interference with the employee meals and rest breaks. 
• Establish a written policy for meal and rest periods that outlines the scheduling procedure. 
• Develop an Employee Time maintenance system to track when Employees leave for and return from breaks. The Time Maintenance system can serve as evidence for demonstrating a good faith effort in compliance during litigation.
• Investigate all complaints from Employees in a timely manner and apply the appropriate policy uniformly.