Chamber members who attended the Meal Period Seminar presented by Marcia Ross, a partner in the law firm of Atkinson,Andelson, Loya, Ruud & Romo, learned that the State Supreme Court unanimously ruled that they are not the “meal period police”. The long-awaited Brinker decision concluded that employers are only required to provide a meal period, they do not have to ensure that employees take it. Ms. Ross pointed out that the meal period must be a minimum net 30 minutes, uninterrupted. The Court didn’t specify how the employer must meet its obligation to relieve the employee of all duty for that 30 minute period, stating each employer is different. If the employee chooses to work during the meal period and the employer knew or should have known the employee worked, the employee is to be paid for that time. But, because the employee chooses to work during the meal period, the one hour penalty will not apply. On the other hand, if the employer requires an employee to work during a meal period or does not provide relief so employee can take the meal period, then the penalty does apply and should be recorded on the paystub on a separate line as a premium or penalty and not wages.
Other key points:
- If an employee takes an early meal period i.e. within the first 2 hours of work, the Court rejected the idea that the second meal period would occur within the next 5 hours, stating that the Labor Code does not call for rolling meal periods, rather it requires a meal period no later than the 5th hour of work, and a second meal period no later than the end of the employee’s 10th hour of work.
- Employees can waive the second meal period except on those days that they work more than 12 hours. If they waived the second meal period before they realized they would work more than 12 hours that day, then the penalty applies.
- Rest periods do not have to, in all circumstances, be authorized before the meal period; the requirement is that the employer make its best effort to provide them in the middle of each 4 hours of work or major fraction (i.e. 3-1/2 hours) thereof.
- Rest periods must be a minimum of a net 10 minutes. So, if an employee has to walk 5 minutes each way to the break area, the total time available would be 20 minutes.
- Employers should have clearly written policies covering meal and rest periods that are in line with the Court’s decisions.
- Employers must take affirmative steps to relieve non-exempt employees of all duty during required meal periods.
- Time cards or electronic timekeeping should record time in/out for meal periods.