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Employers Need Not Ensure Employees Take Meal Periods

California Labor Code section 512 bars employers from having an employee work more than five hours without providing the employee with a meal period of not less than 30 minutes. The wage orders promulgated by the Industrial Welfare Commission mimic that provision. See, for example, IWC Order No. 5, page 7, section 11. For years, controversy has raged over whether it is enough for employers to make the time available, or whether employers must ensure that employees actually take their meal periods. The California Supreme Court is expected to settle the issue when it finally decides Brinker Restaurant Corp. v. Superior Court, Case No. S166350, for which it granted review on October 22, 2008. (The Court of Appeal opinion under review is available here.) The case has been fully briefed, but is not yet set for oral argument.

In the mean time, the Courts of Appeal from time to time publish opinions on the issue. In the most recent decision, Lamps Plus Overtime Cases, Division Eight of the Second District Court of Appeal agreed with other recent decisions that it is enough to make the time available, and not interfere. “This mandatory language does not mean employers must ensure employees take meal breaks. Rather, employers must only provide breaks, meaning, make them available. Our interpretation of the meal break requirement is supported by the definition of the word ‘provide’ as used in Labor Code sections 226.7, subdivision (b), and 512, subdivision (a) (‘providing’), as well as California Code of Regulations, title 8, section 11070, subdivisions 11 and 12. … ‘Provide’ means ‘to supply or make available.’ (Webster’s Tenth Collegiate Dictionary (1993) p. 937.)”

“The notion that an employer must ensure all employees take their meal and rest periods is utterly impractical. ‘Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day.’ [Citation omitted] It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws.”

We discussed the meal period rule in previous posts on February 20, 2011October 19, 2008, and September 21, 2008. The Labor Commissioner has posted the answers to frequently asked questions about meal periods here.

UPDATE (October 5, 2011)

The California Supreme Court will finally hear argument in the Brinker case on November 8, 2011. By law, it must hand down its decision within 90 after submission of the case following argument. In the mean time, the Court granted review of the Lamps Plus Overtime Cases referenced in this blog post on July 20, 2011.