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Employers Beware: Breaks and Lunches

We've been monitoring an important case affecting employer and employees, Brinker v. Superior Court, which has worked its way to the California Supreme Court.  The case addresses important issues related to employee breaks and lunches, including the timing of breaks and employer responsibility for ensuring that employees take breaks.  Brinker has generated significant interest among large employers and labor groups.  The case has been fully briefed before the Supreme Court and the parties will now wait for the court to schedule oral argument.  Although the court's decision has the potential to be somewhat wide-ranging, addressing specific statutory requirements regarding timing of breaks, we'd like to focus on one crucial issue:  whether an employer must ensure that its employees take rest breaks and meal breaks.

The plaintiffs in Brinker were restaurant employees attempting to bring a class action against a large restaurant chain, alleging violations of California law related to breaks.  On the issue of responsibility for taking breaks, plaintiffs argued that California Labor Code section 512 affirmatively requires employers to ensure that breaks are actually taken.  The Court of Appeal examined two federal court decisions on the issue decided under California law and concluded:  "We find the reasoning in Starbucks and Brown persuasive and conclude that employers need not ensure meal breaks are actually taken, but need only make them available."

So, the Court of Appeal reasonably concludes that employers don't have to babysit employees by requiring them to exercise a right that is provided them by law.  The problem, however, is that this holding from Brinker is not currently "good law" because the case has been accepted for review by the California Supreme Court.  Employers and employees will now have to wait for the Supreme Court to issue a decision addressing not only responsibility for breaks but the timing of them.  We trust the Supreme Court will read section 512 as the Court of Appeal did, as a requirement to make breaks available but not a mandate to grab employees by the collar and march them off to the break room.

While the Supreme Court considers the matter the best course of action is to take all reasonable steps to ensure that employees are taking breaks.  Do not allow employees to "work through" break or lunch periods.  These break periods are instrumental in creating and maintaining a safe and healthy work environment.  Furthermore,  violating break laws can lead to adverse consequences including money damages and penalties.  We'll keep you updated on the status of the Brinker case, including its effect on break timing.

Michael M. McMahon –

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