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California Supreme Court Meal & Rest Break Decision in Brinker

Written By: Melissa C. Marsh, Esq., California Attorney, April 2012 Add to Favorites
On April 12, 2012 the California Supreme Court issued its very long awaited decision relating to employee meal and rest breaks in Brinker Restaurant Corporation v. The Superior Court of San Diego County, (Hohnbaum), ___ Cal.4th ___ (April 12, 2012).

In Brinker, the California Supreme Court answered the following questions:

  1. When Must 10 Minute Rest Breaks Be Given?
  2. Whether a California employer has the duty merely to provide a 30 minute meal break, or a duty to ensure that its non-exempt employees actually take the 30 minute meal break?
  3. When must the 30 minute meal break be provided?
1. When Must 10 Minute Rest Breaks Be Given?

Rest breaks must be provided for every four hours of work, "or major fraction thereof" which the Court defined as more than two (2) hours. California employers must therefore provide a 10 minute rest break to all nonexempt employees who work more than three and one -half ( 3 ½ ) hours but less than six (6) hours in a day. Two 10 minute rest breaks are required for nonexempt employees who work more than six hours, but less than 10 hours in a day. Three 10 minute rest breaks are required for nonexempt employees who work 10 to 14 hours in a day. Employees who work less than 3 ½ hours in a work day are not entitled to a rest break.

2. Duty to Provide A Meal Break.

In Brinker, the California Supreme Court concluded that the duty to provide a meal break is satisfied under IWC Wage Order No. 5 (applicable to the restaurant industry) and Labor Code §512(a) if the employer provides its non-exempt employees with a reasonable opportunity to take an uninterrupted 30 minute meal period(s) during which the employees are relieved of all duties and employer control , are free to leave the premises, and the employer does not "impede or discourage them from doing so." The Court additionally held that while the employer must "relieve the employee of all duty for the designated period, [the employer] need not ensure that the employee does no work."

3. When Must A 30 Minute Meal Break Be Provided?

According to California Labor Code §512, the employer must provide an initial uninterrupted 30 minute meal break "no later than the end of an employee's fifth hour of work" and a second 30 minute meal period "no later than the end of the employee's 10th hour of work." According to the Court, neither the Labor Code nor IWC Wage Order No. 5 "impose [any] additional timing requirements."

Although the California Labor Commissioner has long taken the position that the meal period should be taken as close to the middle of a shift as is possible and that a second meal period must be provided no later than five hours after the end of a first meal period, the California Supreme Court disagreed. According to the Court, meal periods can be provided early in a shift, even during the first hour of work and even before the first rest break.

The Court concluded, IWC "Wage Order No. 5 imposes no meal timing requirements beyond those in section 512. Under the wage order, as under the statute, an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work."

4. Class Certification Issues.

In addition to finally clarifying when and how a California employer must provide meal and rest breaks to their nonexempt employees, the California Supreme Court also addressed the requirements to obtain class action certification, which has been purposely omitted from this post.

5. Summary Of The New Meal and Rest Break Rules For Nonexempt California Employees.

  1. Employees who work less than 5 hours are not entitled to a meal period, but are entitled to one 10 minute rest break.
  2. Employees who work 5 to 6 hours in a day, are entitled to a 10 minute rest break and an uninterrupted 30 minute meal period, which must be taken by the end of the fifth hour of work, unless the employee has waived it in writing.
  3. Employees who work more than 6 but no more than 10 hours must take an uninterrupted 30 minute meal period by the end of the fifth hour of work and this meal period cannot be waived.
  4. Employees who work more than 10 hours in a day, are entitled to three (3) 10 minute rest periods and two (2) uninterrupted 30 minute meal periods, one which must be taken by end of the 5th hour of work and the second which must be taken by the end of the 10th hour of work. This second meal period cannot be waived if the employee works more than 12 hours in a work day.
For more information on California employment law, please see Primer on California Wages, Overtime Pay and Employee Benefit Laws.

Tags: California law on employee meal and rest breaks, California Supreme Court decision in Brinker
Posted In: Employment Law News 


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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.