In the wake of recent litigation a recent California case has given employers a “break” by reducing an employer’s obligation to enforce meals and breaks and reducing the potential liability for employees “off the clock work”. In Brinker Restaurant Corporation v. Superior Court of San Diego County, the Court held :

• An employer’s obligation is only to provide (or make available) meal breaks - not ensure that the employees actually take them. Employers may not do anything to impede, discourage or dissuade employees from taking a meal break.
• 5 Hour Rule re: Timing for Meal th Periods: Employers are not required to provide a meal period for every five consecutive hours worked. Providing employees with an “early lunch” within the first few hours of an employee’s arrival at work did NOT violate California law - even if it would mean that the employee might work in excess of five hours without an additional meal period.
  • An employer must make a FIRST 30 minute meal period available to an hourly employee who is scheduled to work more than five hours per day, unless:
    • the employee is going to work a “total work period per day” that is six hours or less; and
    • both the employee and employer agree by “mutual consent” to waive the meal period.
  • An employer must make a SECOND 30 minute meal period available to an hourly employee who is scheduled to work more than 10 hours per day, unless:
    • the “total hours” the employee is going to work per day is 12 hours or less;
    • both employee and employer agree by “mutual consent” to waive the second meal period; and the first meal period was not waived.

• Employers must provide rest periods but not ensure that they are taken. Employers may not do anything to impede, discourage or dissuade employees from taking a rest break.
• Timing of Breaks: Employers need only :
  • Authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period.
  • The phrase “major fraction thereof” was interpreted to mean that employees may take a break between 3 ½ hours and 4 hours of work. It does NOT mean that a rest period must be given every 3 ½ hours. So if 4 or more hours are worked, the break needs to be given every 4 hours, NOT every 3 ½ hours.
  • The first rest period need NOT be given before the scheduled meal period. If rest periods are made available to employees, and where practicable are scheduled in the middle of the first 4 hours of work, employers will be compliant with the wage orders.

Employers will not be held liable for their employees "working off the clock" (such as working while clocked out for a meal period or clocking out and remaining on the job performing duties) unless they know or should have known that the employees were working while not clocked in.

Only five documents may be used to meet the List A requirements: (1) a U.S. passport (unexpired or expired); (2) a Permanent Resident Card (Form I-551); (3) an unexpired foreign passport with a temporary I-551 stamp; (4) an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I- 688A, or I-688B); and (5) an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for non-immigrant aliens authorized to work for a specific employer.

• Have a policy stating employees are entitled to a 30-minute duty free unpaid meal period when scheduled to work more than 6 hours per day, and that the meal period should be in the first 5 hours of work;
• Require employees and their supervisors to sign a Meal Period Waiver form for any day that the employee is scheduled to work LESS than 6 hours and does not wish to take a meal period;
• Have a policy stating employees are entitled to take a 10-minute paid rest period for every 4 hours of work.
• Require employees certify their time sheets to acknowledge that the employee has received all meal and rest periods to which he/she is entitled.
• Have a policy that states employees are responsible for clocking in and out for every shift and meal period, and working off-the-clock for any reason is considered a violation of company policy.

This decision is great news for employers especially now that the Division of Labor Standards Enforcement has acknowledged that the Division will follow the Court’s ruling; however, it is possible that the California Supreme Court may reverse the decision or the legislature may pass a bill which overrides this ruling. So, we do not recommend making any immediate policy changes until further clarification is provided. We will keep you informed of any recent developments in terms of this case and this complicated area of the law.