On August 1, 2008, we sent an E-Alert advising that in Brinker Restaurant Corporation, et al. v. Hohnbaum et al. the California Court of Appeal ruled that employers are only required to provide and need not ensure that meal and rest periods are taken by employees. ("Major Victory for CA Employers: Meal & Rest Periods Need Only Be Provided, Not Ensured," August 1, 2008). We advised that this was likely not the last word on the subject, since there was pending legislation, and we expected the case to be appealed to the California Supreme Court.
Supreme Court Review and Stay
On October 22, the California Supreme Court, by a 6-0 vote, agreed to review Brinker and stayed the Appeals Court ruling pending review. Also at issue is whether the case can proceed as a class action. These actions by the Court will provide an opportunity to resolve the conflict between Brinker and an earlier appellate court decision, Cicairos v. Summit Logistics Inc., 133 Cal.App.4th 949 (2005), which ruled that employers have a duty to ensure that employees get meal breaks.
Until the issue is resolved, employers should:
- Have and communicate a clear policy providing for meal and rest breaks, educate employees about the policy and enforce it consistently;
- Have employees record and acknowledge that they have taken their meal and rest breaks;
- Encourage, and do not impede, discourage, or dissuade, your employees to take meal and rest breaks;
- Make sure that the meal breaks are taken before the start of the fifth hour of work;
- Make sure that the employees take a full thirty (30) minutes;
- If an employee has to work during the meal period, have them sign a waiver acknowledging that the nature of the employee's work prevented him or her from being relieved of all duty and pay them for the time worked; and
- Have a policy that all employees are to record all time worked and subject to termination if they fail to comply.
Veronica M. Gray is Chair of Nossaman's Employment Practice Group and represents employers in all areas of employment law. She can be reached at 949.477.7663 or firstname.lastname@example.org.