The much-anticipated California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (Apr. 12, 2012, S166360) came down largely on the side of employers: Among other conclusions, the court held that employers are under no obligation to ensure that workers take legally mandated meal breaks. But this doesn’t mean that employers are completely off the hook — they should still have a written policy informing employees of their rights and obligations with regard to meal periods.
California employers should have a meal period policy that includes the following 10 key provisions:
- A statement that employees working more than 5 hours are required to take a duty-free meal period of 30 minutes’ duration. An employer is free to provide a longer meal period, and any employer choosing to do so should so specify in its written policy.
- A statement that employees who work no more than 6 hours in a day may voluntarily agree to waive their meal period for that day if their manager agrees to permit such a waiver.
- A statement that employees who work more than 6 hours in a day are prohibited from waiving their meal period.
- A statement that employees who work in excess of 10 hours in a day will be required to take a second 30-minute unpaid meal period unless waived by mutual agreement.
- A statement that employees who work more than 12 hours in a day are not allowed to waive the second meal period.
- A statement that employees will be relieved of all duties and be free to leave the worksite during their meal periods.
- A description of the procedure to be followed in the event that a meal period is interrupted by work. Options would be for the employee either to start a new 30-minute meal period following the interruption or to be appropriately compensated for having taken a noncompliant meal period. The latter option would entail payment for the entire meal period, as time spent in a noncompliant meal period constitutes hours worked plus payment of the 1-hour wage penalty established by Lab C §226.7.
- A requirement that employees accurately record the time their meal period started and stopped on their time card.
- An instruction that employees are to contact their supervisor or human resources if they have questions regarding meal breaks.
- In addition, employers should consider adding an attestation to their timecards that requires employees to certify that they have been provided with all the required meal periods, such as: “I declare under penalty of perjury that I have accurately recorded all of the hours I worked, I have received all of the meal periods to which I was entitled based on the number of hours I worked, and I have had the opportunity to make any necessary corrections to this time record before I signed it.”
For comprehensive coverage of wage and hour topics, including sample meal and rest break policies, turn to CEB’s award-winning publication, Wage and Hour Law and Litigation. Also check out CEB’s Law Alert on the Brinker decision, discussing all of the court’s conclusions, including those on the class action issues.
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