In Brinker Restaurant Corp. v Superior Court (2012) 53 C4th 1004, 1049, 139 CR3d 315, the California Supreme Court stated: “[A]n employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” 53 C4th at 1034.
To comply with this rule, employers must:
- relieve employees of all duty;
- relinquish control over employees’ activities;
- permit employees a reasonable opportunity to take an uninterrupted 30-minute break;
- not impede or discourage employees from taking uninterrupted 30-minute breaks free of all work duties; and
- start the meal period any time before the expiration of 5 hours of work for the first meal period and 10 hours of work for the second meal period.
Though employees may choose not to take meal periods and employers need not police the workplace to ensure employees take them, employers can’t exert coercion against taking breaks or create incentives or otherwise encourage employees to forgo or skip meal periods.
Every California employer should have a written policy on meal periods that includes the following provisions:
- A statement that employees working more than 5 hours must take a duty-free meal period of 30 minutes’ duration (employers may choose to provide a longer meal period and so specify in the 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 if a meal period is interrupted by work.
- A requirement that employees accurately record the time their meal period started and stopped on their time card.
- An instruction that employees contact their supervisor or human resources with any questions on meal breaks.
Employers may also want to include an attestation to employees’ time cards that requires employees to certify that they have been provided with all the required meal and rest periods.
Need a sample meal policy or information on other workplace policies and best practices? Check out CEB’s award-winning California Wage and Hour: Law and Litigation. For the latest developments in the ever-changing world of employment law, watch CEB’s program Essential Employment Law Issues: Wage and Hour Compliance.
Related CEB blog posts:
- Contracts on Love?
- Pay Me Back: Every Employer Should Have an Expense Reimbursement Policy
- Traps for the Unwary Employer
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