Legal Alert: Frequently Asked Questions About the Brinker Decision

Date   May 2, 2012

Executive Summary: Although the California Supreme Court provided much-needed guidance on California's meal and rest break law in its Brinker decision, some questions have arisen in the wake of the decision.  This Legal Alert answers some of the most frequently asked questions we have received relating to the decision and, in turn, the current state of California's meal and rest break laws.

1.  I read on the internet that I don't have to provide meal periods to my employees anymore.  Is that true?

No.  The California Supreme Court was very clear in explaining that meal periods are "guaranteed" and "required" to be provided to employees.

2.  What do I have to do "provide" a meal period to employees?

There are three requirements for "provide."  First of all, an employer must "provide" at least one meal period when an employee works more than five hours are worked by an employee.  An employer's meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.  Failure to satisfy all three requirements may result in a meal period penalty.

3.  When do I have to provide a meal period?

In addition to the three requirements above, the first meal period must be "provided" no later than the start of the sixth hour worked.  This means that the meal period must start no later than the end of the employee's fifth hour of work.  As an example, if the employee starts work at 9:00 a.m., the meal period must begin no later than 2:00 p.m.  (Please note that if there was a running timer for time worked, it should display 5:00.)

Additionally, if an employee works more than ten hours, the employee is entitled to a second meal period no later than the start of the eleventh hour.  In terms of a timer, this means that the second meal period must start no later than the end of the employee's tenth hour of work.

Failure to provide meal periods within these time periods may result in meal period penalties.

(Please note: This answer is different for employees in the motion picture industry as there are specific timing intervals for such meal periods.)

4.  Can meal periods be waived still?

Yes.  If the employee works no more than six hours, the first meal period may be waived by mutual written consent of the employer and employee.

If the employee works no more than twelve hours, the second meal period may be waived by mutual written consent, so long as the first meal period was not waived and the employee works no more than twelve hours on the day in question.

5.  If someone does not take their meal period even though one was properly provided, do we need to pay a meal period penalty?

No.  As explained above, there are still meal period requirements that the employer must comply with in order to avoid a penalty.  With that said, it is important to note 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."  This comes into play where an employer pressures an employee to return to work and cut the meal period short.  Where an employer exerts such pressure, payment of a meal period penalty is required.

6.  What if the employee's time records do not show a meal period was taken?

Although not binding, two of the seven California Supreme Court justices issued a separate opinion in Brinker where they explained: "If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided."

In everyday language, this means that where an employee's records indicate no meal period was taken, the operating assumption is that a meal period was not provided.  In such a situation, if there was a dispute between the employer and employee about whether a meal period was provided, the burden is on the employer to establish that it was provided, which is a seemingly uphill battle for an employer. 

In order to facilitate this uphill battle, we recommend employers implement a policy where employees must review their timesheets every payroll period and then certify that they were provided all meal periods, while also giving them the opportunity to indicate whether any meal periods were not provided.

7.  What if I meet all the requirements to "provide" a meal period, but the employee continues to work through the meal period?

Although a meal period penalty may not be required where an employer does "provide" a meal period, where the employee continues to work and the employer knows or should reasonably know that the employee continues to work through the meal period, regular pay for that time worked still must be paid.  Thus, the employer may not be on the hook for the meal period penalty, but because the employer is still permitting work to be done for its benefit, the employee must be paid for that time.  This could come in the form of enforcing a policy that no "off-the-clock work be done," or ensuring that any off-the-clock work is later accurately accounted for on the time records.  Nevertheless, an employer is not required to monitor its employees to "ensure" that a break is taken.

8.  What about the "rolling five" requirement I heard about?  When does the second meal period need to be provided?

The Brinker court rejected the plaintiffs' "rolling five" argument.  Just as a first meal period must start within five hours of work, a second meal period must start within ten hours of work.  This means that the second meal period must start no later than the beginning of the 11th hour (i.e., by the end of the employee's tenth hour of work, or 10:00 on a timer). 

9.  Can I give my employees a "late" lunch?  Or what about an "early" lunch?

Late meal periods are not permitted to the extent they are taken after the end of the fifth hour (i.e. not after 5:00 on a timer).  However, nothing in Brinker prevents an employer from providing early meal periods to its employees.

(Please note: This answer is different for employees in the motion picture industry as there are specific timing intervals for such meal periods.)

10.  What did Brinker say about rest breaks?

Essentially, a 10-minute rest period must be authorized for every four hours worked.  However, such a rest period need not be authorized when the total work time is less than 3.5 hours. 

The Brinker court gave a specific structure for when and how much time employees are entitled to for their rest periods: Employees are entitled to 10 minutes "rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on."

11.  Does a rest break have to be taken before a meal period?

No.  However, an employer must make a "good faith effort to authorize and permit rest breaks in the middle of each work period."  Despite this preferred rule, deviation may occur "where practical considerations render it infeasible."  In sum, a rest period may fall before or after the meal period.

12.  May meal and rest breaks be combined if the employee requests to do so in order to have an extended meal break?

Quoting Wage Order 5, the Brinker court noted that rest breaks must fall within the middle of each work period "insofar as practicable," noting further that deviations from that "preferred course" are permitted "where practical considerations" render such timing of breaks "infeasible."  Given this language, the combining of breaks would ordinarily not be permitted and should be avoided.

13.  Can meal period and rest period claims still be certified as class actions?

Yes as to both.  Where an employer's policies are contrary to the law, claims for violations of meal and rest break laws may still be certified.  Indeed, the rest period class in Brinker was ultimately certified because the employer's policy only allowed for one rest break.  Further, the Brinker court positively pointed out previous meal break cases that were certified.  For example, a class may be certified where an employer's scheduling policy makes taking breaks extremely difficult, or even where an employer has an informal anti-meal-break policy where employees are ridiculed and reprimanded for taking meal breaks.

14.  What about pending claims my employees have with the DLSE?  Is the Brinker decision retroactive?

This is an interesting question because the California Supreme Court asked the parties to brief this issue after oral argument in the case, but the ultimate decision makes no mention of applying Brinker's holding retroactively or only prospectively.  Despite not explicitly holding either way, retroactive application of case decisions is the rule of thumb. 

15.  Has there been any ruling regarding the availability of attorneys' fees in meal and rest break litigation?

Yes.  In a related case, the California Supreme Court ruled April 30 on the issue of attorneys' fees in meal and rest break lawsuits.  Kirby v. Immoos Fire Protection.  In Immoos, the Court held that "winners" – whether plaintiffs or defendants – in cases addressing meal and rest break violations are not entitled to recover attorneys' fees.  The result of this decision is expected to make plaintiffs less likely to file such lawsuits as a matter of course, particularly as a basis for class actions.  (Please note that plaintiffs may still be able to recover attorneys' fees for meal and rest break violations under alternative laws, but recovery of such fees is less likely.)

If you have any questions regarding the Brinker decision or California's meal and rest break laws, please contact the attorney with whom you usually work or the authors of this Legal Alert, Stephen Lueke,, Curtis Graham,, or Kevin Sullivan,, all of whom are attorneys in our Los Angeles office.