Generally, California Labor Code and applicable Wage Orders require employers to provide at least one, thirty-minute meal period to all employees who work at least five hours per day, with a ten-minute rest period provided in the middle of each four-hour work period. California Labor Code § 226.7 requires an employer to pay an extra hour of penalty pay to an employee if the employee fails to provide a meal period or rest period, as mandated by an applicable Order of the Industrial Welfare Commission. For any employer who fails to provide a meal period or rest period as required in California, the financial exposure can be significant.
However, in a recent decision in the case of Brinker Restaurant Corporation, et. al. v. Superior Court (July 2, 2008) D049331, the Fourth District Court of Appeals may have dramatically altered an employer’s responsibilities with respect to providing meal periods and break periods. This State Appellate Court concluded that:
1). Employers cannot impede, discourage or dissuade employees from taking meal periods or rest periods but;
2). Employers need only provide, not ensure, that such meal periods or rest periods are taken.
3). Rest periods need only be authorized every four hours and need not be taken in the middle of each work period where doing so would be impractical.
4). The statutory language of California Labor Code § 512 permits employers to offer a meal period anytime within the five-hour, work period window.
The Appellate Court ruling in “Brinker” is consistent with prior rulings of United States District Courts, for the Central and Northern Districts of California, which held that employers must offer meal periods or rest periods, but are not required to schedule these breaks, nor ensure that employees are actually taking these breaks. ((Federal Cases: White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080; Brown v. Federal Express Corp. (C.D. Cal. Feb. 26, 2008) 2008 2008 US District Lexus 17125; Kenny v. Supercuts, Inc. (N.D. Cal. June 2, 2008) US District Lexus 43070)).
The effects of Brinker appeared to be immediate. In response to the Brinker ruling, California’s Labor Commissioner directed all Department of Labor Standards Enforcement staff to apply the Brinker decision to all pending cases.
However, the Brinker ruling is in conflict with a prior Appellate Court decision in the case of Cicairos v. Summit Logistics, Inc. (2006) 133 Cal.App. 4th 949; 35 Cal. Rptr.3d 243. The Appellate Court ruling in Cicairos seeks to saddle employers with the onerous responsibility of ensuring that employees actually take their complete breaks.
It is likely that the California Supreme Court may grant review of the Brinker case. If that occurs, the Appellate Court’s decision in Brinker would be no longer be a published decision and would, instead, be replaced by the decision of the California Supreme Court. However, until and unless such review is granted, it appears that a rational, employer-friendly policy has resulted from the Appellate Court’s decision in Brinker.