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California employees working through their meal break post Brinker California

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  • California employees working through their meal break post Brinker California

    So the 2012 Brinker decision clarified that the employer is required to provide a meal break before the end of the 5th hour of work however the employer does not have to ensure the meal break is taken. The employer does not have a duty to police that no work is done during the meal period. The decision allows the employee to choose to continue working. If the employee chooses to continue working the employer will have to pay their regular wages (since the employee is working) but will not have to pay the missed meal break penalty pay (= 1 hours' pay at regular rate). For this example let's assume that it is an 8 hour shift & all other legal criteria (like relieving the employee of all duty, uninterrupted break etc.) are met.

    My questions are:
    1. How does an employer prove that the break was provided?
    2. Would it be legal to have a "waiver"? I have mentioned it in quotes because I am not talking about the official less than 6 hour shift waiver. There is no legal requirement/definition of a waiver when the employee chooses to continue working through their formally provided meal break for a shift exceeding 6 hors.
    3. Since the court has mentioned that an employee can choose to continue working, can the employer place restrictions on employees who continue to work through the break? Again I understand that the employer will not have to pay the penalty pay but they might want the employee to take the break since they need the employee at the close of the shift and will need to pay overtime if the employee does not take their meal break. One employer I heard of has developed a form they make their employees sign each time they continue to work through their meal break. They require the employee to mention that the employee was provided a meal break and that the employee is foregoing the meal break for personal reasons. Furthermore the employee is required to clarify if the personal reason is personal-medical or personal-family reason. No further detail on family or medical reason is required. Does that sound legal?
    Any comments???
    I have read some attorney's recommendations that employers adopt a meal break policy and document the training and acknowledgement of the policy.
    I understand that employers should be careful as to not appear to, in any way, pressure, coerce or incentivize employees to skip their breaks.

  • #2
    In all 50 states, if the employer insists a break be taken, a break may be enforced. It is not up to the employee to decide whether or not they wish to work the schedule as set by the employer.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Thanks for you response ElleMD!

      Below are three links and excerpts from those web pages. Should have the time to glance through and comment, I would appreciate that.

      “….An employer need not "ensure" that no work is done during a meal period. If an employer relieves the employee of all duty, the employer is not liable for a meal period premium if the employee chooses to work (unless the employee is pressured by the employer to work). However, if the employer knew or reasonably should have known that the employee was working during the meal period, the employer will be liable for payment of the employee's regular (or overtime) wage for such time worked…”
      .. Analysis Of The Supreme Court's Ruling
      ….With respect to meal periods, the Supreme Court made three particularly significant pronouncements: (1) an employer must relieve an employee of all duty for a meal period, but need not ensure that the employee does no work; (2) if work does continue, the employer will not be liable for premium pay but will only have to pay for actual time worked if it “knew or reasonably should have known that the worker was working through the authorized meal period”……


      “… (1) Meal breaks.
      The most significant issue deals with the employer's duty to provide meal breaks. The court said,
      "We conclude an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done." "The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so." "The employer is not obligated to police meal breaks and ensure no work thereafter is performed."

      California Department of Labor Standards Enforcement Manual:

      Employers Must Provide Meal Periods.
      In Brinker Restaurant Corporation v. Superior Court of San Diego
      (2012) 53 Cal.4th1004, the California Supreme Court interpreted the meal period provisions of Labor Code section 512(a) and Section 11 of Wage Order 5-2001 holding that in order to “provide” a meal period, employers must relieve employees of all duty. During that time, employees must be ‘free to come and go as they please.” If an employer has relieved an employee of all duty and if work does continue, the employer, although not liable for meal period premium pay, must pay for the time worked.
      In addition, the employer must relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute meal period and not impede or discourage an employee from doing so. It is not enough just to make the meal period “available”. Even if an employer has a formal policy of providing meal periods, it will be a violation if the employer creates incentives to forego, or otherwise encourages skipping of, meal periods.
      Payment for Work Performed During Meal Period.
      An employee who elects to work during a meal period must be paid for all hours worked and be compensated for all hours worked with payment of the appropriate overtime premium if work performed during a meal period results in accrual of daily or weekly overtime. An employer has the obligation to accurately record all hours worked, including those worked during a meal period, and must properly report all such time on wage statements, as required by Labor Code section 226(a).


      • #4
        None of those links change my last post. Just like with OT, it is totally legal for an employer to have a policy forbidding employees for working more than 40 hours in a week. If the employee is non-exempt and does anyway, they must be paid but can still be counseled or disciplined for working when told not to work and violating the policy. Employers do not have to allow an employee to skip lunch and get paid for an "extra" hour because the employee wants to do so. If the employee works, they must be paid, but that does not mean the work schedule and hours worked are the employee's choice.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


        The forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on are opinions and suggestions of members and is not a representation of the opinions of does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.