As we reported in our October 24, 2008 Compliance Matters, the California Supreme Court agreed to review the employer-friendly meal break decision involving the Brinker Restaurant Company.  On October 28, 2008, another Court of Appeal interpreted the meal break statute in the same way as the Brinker case (i.e., that to "provide" a meal break means the employer merely has to make meal breaks available to employees, not guarantee that the breaks are actually taken).  (Brinkley v. Public Storage, Inc.)  Since the Brinkley Court reached the same conclusion as the Brinker case, and the Supreme Court has agreed to review Brinker, it is almost certain that the Supreme Court also will review the Brinkley case.

 

Meanwhile, the California Labor Commissioner has weighed in on how the State's meal period statute should be interpreted.  In an October 23, 2008 memorandum to its field staff, Labor Commissioner Angela Bradstreet announced the State's enforcement position while we await the Supreme Court's decision.  Labor Commissioner Bradstreet stated that in cases which are brought before the Labor Commissioner, the State will follow the employer-friendly interpretation enunciated by the Brinker Court.  The Labor Commissioner also confirmed several other important points:

 

-  Employers cannot prevent or discourage employees from taking breaks.

 

-  Employers cannot assume that employees are able to take breaks.

 

-  The first meal break must, generally, start before the end of the fifth hour of work.

 

-  A second meal break must be made available to employees that work more than 10 hours, although employees can waive the second break if they do not work more than 12 hours.

 

-  Employers must record the time of day when employees begin and end their meal break, unless all operations cease during the break period.

 

-  Employers cannot require employees to work through any required meal breaks.

 

-  Employers must pay penalty compensation equal to one hour of pay for each day that a proper meal break was not "provided".

 

Although the Labor Commissioner's memorandum is good news for employers, it has limits.  First, it is only binding on claims filed with the State Labor Commissioner's Office.  Courts are free to disregard this interpretation.  Also, if the Supreme Court ultimately rules that employers actually must ensure that each and every meal break was taken, employers who rely upon the Brinker ruling necessarily do so at their peril while we await the Supreme Court's final ruling.  Given this uncertainty, we recommend that employers consider taking the following steps to ensure compliance until a definite ruling is issued by the Supreme Court:

 

-  Create and disseminate a lawful meal and rest break policy.

 

-  Train managers on the policy and when the one hour of premium compensation must be paid.

 

-  Record when the meal break starts and stops.

 

-  Systematically review compliance.

 

-  Have employees acknowledge the policy in writing, and post a copy of the policy by the time clock.

 

-  Get a written waiver from the employee if the meal break can be waived (e.g., the employee does not work more than six hours).

 

-  Make sure any "on duty" meal agreement is reviewed by legal counsel.

 

On December 5, 2008, the Firm is conducting a "Lunch 'N Learn" webinar on these latest meal break developments.  To obtain more information about the program and to register for the December 5, 2008 webinar, please go to the following link: www.brgslaw.com.