Three years after the much-anticipated California Supreme Court opinion in Brinker Restaurant Corp. v. Superior Court, employers are still grappling with how it affects employers’ obligations towards their employees. The Supreme Court provided much-needed clarification regarding employees’ rights to meal and rest breaks—an area that has generated a number of lawsuits—but there are still questions as to what an employer must do to “provide” the required meal and rest breaks.
Prior to Brinker, many lower California courts had treated missed meal breaks by employees as something for which the employer could always be found at fault, even in situations where the employee was given the opportunity by the employer to take a meal break, but the employee had voluntarily eschewed the opportunity. Thus, the primary issue in Brinker was determining whether employers must simply provide employees with an opportunity to take a 30-minute meal break, as the employer in the case contended, or whether employers had to also ensure that employees actually took their meal periods, as the employees in the case argued. The California Supreme Court clarified the long-standing dispute by holding in Brinker that “[a]n employer’s duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees.”
The Court also provided much-welcome clarity on the number and timing of both meal breaks and rest breaks.
The plaintiffs contended that employers must provide a meal period after each five consecutive hours of work. Under this so-called rolling-five argument, if an employee took a meal break after the first hour of work, the employee would be entitled to a second meal break after another five hours. The Court rejected this argument, holding that Section 512 imposes no such meal timing requirements. Rather, “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.”
Brinker emphasized that employers do have flexibility in scheduling breaks. Nothing in the law says that all workers must take their breaks at a specific time. Rather, the Brinker decision suggests that early meal breaks are permissible, which is particularly important in the hospitality industry.
In addition to the aforementioned meal breaks, employees are entitled under California law to receive two “rest” breaks during any given eight-hour shift. The Supreme Court in Brinker also clarified the rate at which an employer must authorize and provide these rest breaks. To fulfill the requirement, employees must receive 10 minutes of rest time for each four hours of work or “‘major fraction thereof.” A “major fraction thereof” means “a fraction greater than one-half.” But employees whose total daily shift is less than three-and-one-half hours are not entitled to a rest break. The court explained that this means that employees who work shifts from three-and-one-half hours to six hours would be entitled to 10 minutes rest under Brinker; employees who work shifts from six hours to 10 hours are entitled to two 10-minute breaks; and employees who work shifts of 10 to 14 hours get three 10-minute breaks.
The Court also emphasized that there is no timing mandate in the law. The plaintiffs in Brinker argued that employers must permit their employees a rest period before a meal period. The Supreme Court disagreed. The Court found the “only constraint on timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable.’” Thus, employers must make a good-faith effort to permit rest breaks in the middle of each work period, “but may deviate from that preferred course where practical considerations render it infeasible.” For a standard eight-hour workday, the Court stated that rest breaks should be generally be scheduled so that a rest break occurs both before and after the meal break during that work shift. But the court also recognized “shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.”
Perhaps the most widely anticipated aspect of the Brinker decision was the clarification of what it means for an employer to “provide” a meal period. The Court stated that the “employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”
But the Court stopped short of explaining when an employer has satisfied its obligation to provide a meal break, stating that “[w]hat will suffice may vary from industry to industry,” concluding that “an employer must relieve an employee of all duty for that designated period.”
The court did provide, however, that a meal period’s duty-free nature is its defining characteristic. Employees must be relieved of all work duties, be free to leave the premises, and be free to attend to any personal business. The break must also be free from any interruption.
The court refused to read in another requirement—that an employer must ensure that employees do no work during meal periods: “Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.”
The Brinker decision has left employers wondering just how vigilant they need to be if they don’t have to make sure employees are taking their breaks. Now that Brinker has made clear exactly how many breaks an employee is entitled to, and when, courts are seeing lawsuits based on the employer’s policies—either that the existing policy is noncompliant or that there is no policy.
Post-Brinker cases show that to “provide” employees with a break, employees must know what breaks they are entitled to, generally through a comprehensive and compliant policy. All employers should have written meal and rest break policies. Employers who do not already have written policies for both meal breaks and rest breaks should promptly put them into place. And employers who already have written policies need to review them. These policies should be compliant with Brinker—if, for example, if an employer has an old policy that states every employee is entitled to a 10-minute rest break for every four hours worked, that policy may not be specific enough to cover the clarified obligations under Brinker, and therefore should be updated so that it takes into account the “major fraction thereof” language used by Brinker. Likewise, a policy may need to be updated if it merely states that an employee who works at least a five-hour shift is entitled to a 30-minute meal break, but fails to address the issue of the required second meal break if the employee works a 10-hour shift. This second meal break issue should be addressed in the policy even if employees regularly work only eight-hour shifts for that employer, in order for an employer to not only comply with the law as clarified under Brinker, but to also later demonstrate that the employer intended to fully comply with the law by the policies it established. It is also a good idea to include a statement in the policies prohibiting work during break periods. Even if the employer’s practice complies with the law, employers should ensure that their policies also comply with the law.
It is usually not enough, however, to simply have a policy. First, employers should ensure that employees receive these policies and understand them. Furthermore, employers should not set a policy and then assume that the policy is resulting in breaks being taken without any further scrutiny of whether the policy is actually resulting in employees taking breaks. Instead, employers must stay on top of the issue by knowing when employees skip meal breaks and then investigating why the missed break occurred. While any particular missed break may simply reflect an individual’s choice during a given shift, the missed break may also point to a systemic problem that could result in later liability to the employer.
In addition to lawsuits based on the lack of a compliant policy, courts are also seeing cases based on employers’ practices, in which plaintiffs allege that the job requirements are either inconsistent with taking breaks, or that the employer offers financial incentives that encourage workers to miss their breaks. If an employer, for example, bases bonuses on an employee’s ability to accomplish tasks within a certain amount of time, employees—and courts—might see this as an incentive to skip breaks.
Employers should also ensure that company requirements and expectations are consistent with policies, and managers and supervisors effectively communicate these to employees. In one post-Brinker case, the court cautioned against prohibiting all personal activities during the workday. An employee may misunderstand this and think it applies to meal breaks too. Under Brinker, an employee’s meal break is essentially personal time; the employee is free to eat or to do anything else for thirty minutes. A scheduling policy that makes taking breaks difficult—i.e., number of deliveries must make in a workday—or an informal anti-meal-break policy that is enforced through ridicule or reprimand from a supervisor have also landed employers in hot water.
Employers should ensure that all managers and supervisors have been trained in meal-break and rest-period compliance. This includes ensuring that managers and supervisors do not interrupt employees during their breaks. It may also mean that managers should schedule both rest-break periods and meal periods for employees to help ensure that employers take them.
As in so many areas of business, accurate and detailed records are also essential. It is good practice to keep records of both meal breaks and rest breaks. Employers may also want to ask employees to review and verify their work hours and breaks to ensure the records are accurate in case the employer’s practices are later challenged.
Employers can then use these records to monitor whether employees are taking breaks by periodically reviewing time records and following up with employees who are not taking breaks. Employers should keep any emails and other documentation reminding managers to provide breaks and reminding employees to take their breaks. It is also a good idea to have a procedure for employees to notify the company when they could not take a break. And if an employer does get complaints or notification from an employee, it should take action.
Although Brinker stated that employers “need not ensure that no work is done,” it also stated that “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” If many employees are consistently not taking breaks, for example, there may be a problem and the employer may need to determine whether managers have impeded or discouraged employees from taking their breaks.
While many count Brinker as a win for employers, it is not a license for companies to get lax about compliance.
 53 Cal.4th 1004, 1040, 273 P.3d 513, 536 (2012).
 53 Cal.4th at 1017, 273 P.3d at 521.
 53 Cal.4th 1029, 273 P.3d at 529.
 53 Cal.4th at 1031, 273 P.3d at 530.
 53 Cal.4th at 1032, 273 P.3d at 531.
 53 Cal.4th at 1040, 273 P.3d at 536–37.
 53 Cal.4th at 1038–39, 273 P.3d at 535.
 Ricaldai v. U.S. Investigations Servs., LLC, 878 F.Supp.2d 1038 (C.D.Cal. 2012).
 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 963 (2005).
 53 Cal.4th at 1034, 1040, 273 P.3d at 532, 536.