While the California Supreme Court’s Brinker decision (April 12, 2012) supplied vital and sensible guidelines that do not require employers to act as a “police” authority confirming workers take their meal and rest breaks, the law will still impose penalties on a business if its supervisors and managers, for lack of training on the new rules, still violate applicable employee rights.

While the Brinker decision clarified that Labor Code 226.7 does not require employers to ensure that no work is done during any meal or rest break, the Supreme Court also confirmed employers cannot “impede or discourage” employees from taking that uninterrupted time off.  Thus, management should consistently promote the availability of such breaks and avoid actions that can be interpreted as undermining appropriate company policy on the subject.  For instance:

-       Management should not fail to schedule out employee meal periods: Recognizing that the particular enterprise may have times during the day when the public’s demand for service make an employee meal or rest break unfeasible (for example, retail, hospitality and food service industries), managers can and must develop a meal and rest schedule to ensure all employees nevertheless receive their allotted time at times most practical for the workers and the flow of business.

-       Management should not provide incentives for employees to work through their breaks: It could well be trouble for supervisors to offer employees extra pay, overtime or any other incentive for choosing to skip a meal break or rest period.  An investigating agency or court could well find such practice as an attempt to “impede or discourage” employees from taking their breaks.

-       Management cannot pressure employees: Any supervisor pressure upon an employee to perform job duties during a break or to skip or shorten that meal break could well be viewed as a violation.  For example, it would be improper for a manager to ridicule or reprimand employees who do not perform any work during their breaks.

For guidance in creating complete meal and rest period policies or properly training supervisors and managers, contact an experienced employment law attorney.

Related Articles:

Brinker: Clocking In on Employee Timekeeping

How to Avoid Costly Penalties for Missed Meal Breaks

The recent California Supreme Court Brinker decision (April 12, 2012) on the standards for providing meal and rest breaks now permits greater flexibility on scheduling, including employer ability to provide workers the option to skip breaks from time-to-time.  However, an employer should take care to institute and maintain written procedures documenting  that any such missed break was the employee’s choice, not from the employer’s direction.

Prior to Brinker,  it was not clear whether employers were obligated to  require an employee to take a meal break or rest period even if that worker  did not want to take the time off.  Brinker clarifies employers do not need to police their employees in this manner. Further, an employer will not incur a penalty if it allows an employee the option of skipping a meal or rest break on occasion.

This greater flexibility requires written policy for management to ensure that any worker choice to forego a break is documented.  For instance, an employer can and should have written procedure that directs any employee opting to skip a meal or a rest period to either request that choice in advance in writing or to promptly confirm that choice afterwards in writing.  An employer can and should also institute a form for an employee to periodically confirm that any and all skipped breaks in a recent period have been at that person’s choice.

Of course, employers should also ensure they pay employees for all time worked including any meal breaks skipped at a worker’s option.

Whether or not an employer chooses to encourage such flexibility is up to the employer.  Once offered however, clear written policy and procedure as above is important.  An attorney skilled in developing workplace policies can and should assist in this process.

The California Supreme Court’s recent Brinker decision (April 12, 2012) includes important clarifications on employee meal breaks as well as rest periods.   To ensure compliance, employers must maintain accurate timekeeping systems for employee working hours.

Under the federal Fair Labor Standards Act (FLSA) and similar California law, employers are required to keep accurate records of hours worked to “nonexempt” employees (those not exempt from overtime pay).  Common and acceptable methods of recordkeeping include handwritten time cards, punching time clocks, and use of electronic badge readers or hand scanners.

Some dos and don’ts:

• Employers should adopt and distribute written policy establishing each employee’s responsibility for accurately recording the times he/she arrives at and leave work.
• This timekeeping policy should also:
  • Include the procedure for foregoing meal periods, requiring an employee to sign an acknowledgement he/she is voluntarily choosing to work through a scheduled meal period;
  • Specify the employer can require any employee to take a meal break if not doing so could result in overtime;
  • Also name the consequences for failing to comply with the clock-in/out requirements, including out/in for off-duty meal periods and any other scheduling requirements; and
  • Also name the consequences for falsifying time cards or clocking in for another employee.
• While employers are not required to keep records of the actual hours worked by exempt-from-overtime employees, businesses should have systems for recording all employee sick days, floating holidays, vacation time, jury duty, bereavement leave, and other absences.
• Employers should regularly review their timekeeping procedures to ensure workers are actually following them.
• While employers may implement a policy for workers to round off their recorded time to the nearest one-tenth, one-fifth or even one-quarter of an hour,  such businesses must regularly audit such time records to ensure that rounding practices fairly compensates employees over time.  If such rounding unfairly favors the employer, the company should revise or discontinue them.

To ensure your timekeeping policies are complete, contact a “management-side” employment attorney.

Related Articles:

Rude Awakenings: Sounding the Alarm on Off-The-Clock Work

How to Avoid Costly Penalties for Missed Meal Breaks

The California Supreme Court has recently clarified this state’s workplace rest period laws.  Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (April 12, 2012).

California law requires employers to provide their hourly employees with one paid 10-minute rest break for every four hours worked or “major fraction thereof.”  The Court confirmed “major fraction thereof” as “more than half.” Obviously, more than half of four hours is thus two hours and one minute.  Thus, the Court directed that if an employee works six hours and one minute, the employer must provide that person with two paid 10-minute breaks must be provided.  A worker who puts in ten hours and one minute has the right to three paid breaks.  (However, this rule does not apply to the first hours worked in a day.  Employers do not have to give employees any rest breaks if the total work for the day is less than 3.5 hours.  See, “Employee Meal Periods and Rest Breaks: California’s Basic Requirements for Daily R&R”)

An employer’s (and worker’s) tendencies would of course be to schedule such breaks in the middle of each four-hour increment of work, with the required meal period in the middle of those two increments in the workday.  However, the Brinker Court observed that this is not always practical, depending on the business.

For example, the Brinker case involved restaurant workers for whom a break in the middle of each of two daily major work intervals (e.g., morning and afternoon shifts) or a meal falling in the middle of the workday (e.g., at the business world’s lunchtime) might not be workable.  Restaurant service personnel depend on tips and would thus resist having to go off of their positions if the establishment happens to be busy at any officially designated break or meal time.

In recognition of such realities, the Brinker Court dictated that there is no rigid rule on the timing of meal periods and rest breaks.  For example, an employer is not even required to designate that a worker’s first rest break precede that person’s mid-workday meal period.   The Court only directed that a employee take the rest break as close to the middle of any four hour work period “insofar as practicable.”

Unlike meal breaks, rest periods are counted as time worked and are compensable.  Therefore, employers may require their employees to take their rest breaks on premises.

Employers who fail to provide an employee with required rest breaks must pay the employee one hour of pay at the employee’s regular rate of pay for each workday that one or more rest periods are not provided.  However, only one hour of premium pay is due no matter how many rest breaks an employee missed in a day.  See Division of Labor Standards Enforcement Manual Section 45.3.7

For assistance in implementing meal and rest periods laws into your business, contact an employment law attorney.

In 2000, California enacted Labor Code 226.7, requiring employers to pay an employee an extra hour of compensation for “each work day that the [required] meal or rest period is not provided.”  Fueled by that financial incentive, nearly overnight, and for the past 11 years, the vast majority of wage-related lawsuits we have defended for California employers have thus included a seemingly automatic claim for alleged missed meal and rest breaks.    It has not been unusual for even a single worker seeking relief to assert thousands of dollars owing over this issue.

Under Labor Code 226.7, employers must provide all hourly employees who work more than five hours in a day with an uninterrupted, unpaid 30-minute meal break.  The tens of thousands of lawsuits that have arisen from this section have largely centered on just what “provides” means here.  For example, is an employer obligated to pay an employee that extra hour of pay if that worker has voluntarily chosen to work through his or her meal period?  Does the law require employers to in effect become the lunch police?

In its widely reported Brinker Restaurant Corp. v. Superior Court (Hohnbaum) decision (April 12, 2012), the California Supreme Court unanimously concluded that requiring an employer to enforce such meal periods goes too far.  An employer satisfies its obligation to provide unpaid meal periods when “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.”

However, should an hourly employee decide to continue working through a provided meal period, the employer must compensate that worker for the time when it “knew or reasonably should have known” about such work.   The extra work time could also trigger overtime compensation in the event a worker then puts in more than eight hours of labor in a given day.

Chili’s restaurant workers filed the case eight years ago against parent company Brinker International, Inc.  They argued the law should require management to issue and enforce directives requiring workers to take their meal breaks and that the employer exploits employees, largely dependent on restaurant tips, who naturally do not want to take their meals during busy periods.

The Supreme Court disagreed, finding a requirement that companies police meal breaks unmanageable.   The decision of course does not absolve California employers from clearly communicating in policies and notices that all hourly workers are entitled to such unpaid meal periods.  Employers must also strive to make such periods available at reasonable and viable times during the workday.

The Brinker decision also covered important issues on hourly worker rights to paid rest periods.  We will cover such points in an upcoming article.

With the aid of knowledgeable legal counsel, employers should promptly review their meal break and rest period policies to ensure they are consistent with Brinker.

(Photo: Oklahoma Historical Society)