The California Supreme Court Issues its Long-Awaited Brinker Decision on Meal and Rest Periods
Posted April 12, 2012

California employers have long been burdened with the obligation to enforce meal periods for employees within five hours of starting their shifts. Meal periods that are missed, late or shorter than thirty minutes (even at the employee's request) have resulted in endless class action litigation and substantial monetary penalties to employers. Employers and employees alike have expressed frustration with the lack of flexibility afforded with regard to work and break time.

Today, the California Supreme Court issued its long-awaited decision in the case of Brinker Restaurant Group v. Superior Court of San Diego, addressing meal and rest period requirements in the workplace. As hoped, the decision provides some measure of relief to employers, but requires employers to remain diligent about policies, practices and documentation to protect themselves from prospective employee claims.

Meal Periods: "Provided" or "Ensured"?

In line with a growing number of federal court decisions on this issue, the Supreme Court noted that "an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work" in the thirty-minute span of time allotted for a meal break. This means that an employer must provide, but need not enforce, a timely meal period to its employees.

The obligation to "provide" the meal period is satisfied if the employee is relieved of all work duties for a period of at least thirty minutes and is free to leave the workplace. Once the employer has "relieved the employee of all work duties," the employee may choose to use the meal period for any purpose he may choose, including to perform work-related tasks.

This decision, however, does not relieve an employer of the duty to pay wages (either straight time or overtime) to employees who personally elect to work through their meal periods if the employer "knows or reasonably should have known" that such work was occurring. Instead, it merely relieves the employer of having to pay the one-hour penalty if the employee chooses to work during the meal period. Presumably, this also means that the employee could voluntarily choose to skip or shorten his meal period without resulting penalties to the employer.

The first thirty-minute meal period still must be provided to the employee after no more than five hours of work. After no more than ten hours of work, the employer must provide a second thirty-minute meal period. The Court clarified, however, that there is no "rolling" five hour period; in other words, once the first meal period has been taken by the employee, there is no obligation to provide a second meal period until the employee has worked ten hours (even if the employee has worked more than five consecutive hours after the first meal period). This means that if an employee working an eight hour shift takes an early meal period during the second hour of work, then returns for another six hours of work, there is no obligation to provide a second meal period during that six-hour stretch.

As suspected, the issue created by this ruling will be: what does it mean to provide a meal period? Judging by the Brinker decision, any pressure by the employer upon an employee to perform job duties during a meal break or to skip or shorten a meal break will be viewed as a violation. Examples of such pressure would likely include a scheduling policy that makes it difficult to take meal periods, informal (or formal) pressure, ridicule or reprimand toward employees who do not perform any work during their meal breaks, or other methods of incentivizing or encouraging the skipping or shortening of meal breaks.

Ultimately, the decision does nothing to prevent employees from claiming that the meal period was not "provided" to them, and the one-hour meal period penalty remains in place for meal period violations. Despite the good news for employers found in Brinker, employers must remain vigilant to protect themselves from meal period claims.

Rest Periods: When Do Employees Get a Break?

Confirming what we already knew, the Court noted that once an employee has worked at least three and one-half hours, he must be provided with a paid ten-minute rest period for each "major portion of four hours worked." The Court analyzed the meaning of "major portion," and determined that (1) employees working between three and one-half hours to six hours must receive one rest period of ten minutes; (2) employees working shifts from six hours to ten hours must receive two rest periods of ten minutes each; and (3) employees working shifts from ten hours to fourteen hours must receive three rest periods of ten minutes each. The distinction to note is the difference between a "work shift" and a "period of work": an employee who takes a rest break thirty minutes into a six-hour shift is not entitled to another ten-minute rest break after four and one-half hours of work.

The Court also opined that it is not necessary to take meal or rest periods in any particular order, presumably clearing the way for an employee on an eight-hour shift to take a meal period within the first two hours of work and then take two additional rest periods during the next six hours of work. The Court did state, however, that in a typical eight-hour shift where two rest periods would be provided to the employee, one rest period should be taken prior to the meal period and one after the meal period "as a general matter."

So, What Do We Do Now?

It is certainly beneficial to employers to be able to avoid payment of meal period penalties to employees who refuse to comply with meal period requirements. Employers and employees also will appreciate the additional flexibility implied by the Court's decision. However, notwithstanding the hype leading up to the Court's ruling, the Brinker decision boils down to "keep doing what you've been doing" for most employers.

Our suggestions for next steps include:

  • Work with employment counsel to implement clear written policies (with employee acknowledgements) informing employees that they are entitled and expected to take an unpaid thirty-minute meal period after no more than five hours of work, and a second unpaid thirty-minute meal period after no more than ten hours of work. Note their right to complain (without fear of retaliation) about any pressure exerted upon them not to take such meal periods.
  • Require employees to record the time taken for meal breaks to demonstrate that they did so (or knew that they could do so but chose not to on any given day) and to record any time worked during the pay period so that they can be paid applicable straight time or overtime rates for their work.
  • Work with employment counsel to clarify policies regarding rest periods. Make sure your rest period policy does not reference a ten-minute rest period "during every four hours of work."
  • Discipline employees who violate company meal and rest break policies (including supervisors who discourage employees from taking their breaks).

Employers would be wise to review and update their meal and rest period policies and time card certifications with legal counsel, to ensure the utmost flexibility for employers while maintaining compliance with the new ruling.

We will discuss the Brinker ruling, necessary policy language, potential new pitfalls for employers and related wage and hour issues at LightGabler's HR Management Strategy Roundtables next month. Mark your calendars for Tuesday, May 8 in Oxnard or Tuesday, May 22 in Simi Valley, 7:30 to 9:00 a.m., to attend these informative updates. Further information regarding these programs will be listed on our website at and will be distributed to our mailing list.

For questions regarding the application of the Brinker decision or assistance with updating written policies and procedures, contact any of the LightGabler employment attorneys.