Question:

In my last two columns, I discussed how a recent California case, Brinker Restaurant Corporation v. Superior Court, impacts unpaid off-duty meal periods for non-exempt employees. The case also discusses what to do if an employee is prevented from taking a meal period, and it explains the new rules regarding rest breaks.

Answer:

If an employer “impedes or discourages” an employee from taking a meal period, a premium of one hour of pay will be owed to the employee as a penalty. The Brinker case clarified that the penalty is owed if the employer impedes or discourages meal periods, but not if the employee voluntarily skips a meal period or takes a short meal period. If an employer schedules employees in a manner that makes taking meal periods extremely difficult, or has an informal policy discouraging meal periods, the employer would be liable for the penalty because it impeded or discouraged employees from taking the meal period. For example, if a delivery driver is required to complete an assigned route by a certain time and has too many stops to make to allow for a meal period, the employer may be impeding or discouraging meal breaks. Likewise, a restaurant manager who disciplines a server for giving poor customer service because the server takes meal periods may be pressuring the server to skip the meal period, even if meal periods are permitted by the restaurant’s written policy.

By contrast, if an employee had the opportunity to take a duty free meal period and decided to work through the meal period, no penalty will be owed, even if the employer knows the employee is working during the meal period.

The Brinker case also discussed the paid rest break requirements. If an employee works 3 ½ hours or more, the employer must provide a paid 10 minute rest break per four hours or major fraction thereof. The term “major fraction thereof” means more than two hours. So, employees who work 3 ½ to 6 hours receive one 10 minute break, employees who work more than six hours up to 10 hours are entitled to 2 rest breaks, and employees who work more than 10 hours up to 14 hours are entitled to 3 ten minute rest breaks. The law states that rest breaks should be taken in the middle of work periods “insofar as practicable.” In an eight-hour shift, as a general rule, one rest break should fall on either side of the meal period.

Written workplace policies must state that ten-minute rest breaks are due every four hours worked or “major fraction thereof.” A policy that allows breaks only every four hours does not comply with the law. Employers need to schedule shifts to ensure there is sufficient time and coverage for meal periods and rest breaks. Train supervisors to permit employees to take ten-minute rest breaks and 30-minute meal periods.

Some employers are adding a statement to employee timesheets so the employee can sign confirming that the timesheet is an accurate record of all time worked, and that meal periods and rest breaks were provided, or the employee has alerted the supervisor to any missed meal periods and rest breaks.
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