Question:

I have been reading headlines that say I don’t have to provide meal periods to my employees any more. Is this true?

Answer:

No, it is not true. Under the law, employers are still required to provide at least a 30 minute duty free meal period to non exempt employees who work 5 hours or longer. A new California Supreme Court case, Brinker v. Superior Court, explained that the employer satisfies its obligation to provide a meal period “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.” If the employer fails to meet this obligation, penalties may be imposed.

What the Supreme Court decision changed was the employer’s obligation to require that the employee actually take a full 30 minute meal break. Before the Brinker case, employers had to force employees to take a 30 minute meal period or face payment of a penalty. This was burdensome for employers and did not allow the employee the choice to work through the meal period or take less than 30 minutes if the employee wanted to do so. Now, employers have to provide a 30 minute duty free meal period, but they do not have to make sure employees take a full 30 minute meal period. Employees may now choose to work through the meal period or take a shorter meal period if they want to. As the Supreme Court explained “the employer is not obligated to police meal breaks and ensure no work … is performed [during the meal period]. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not place the employer in violation of its obligations….”

Although this decision has been heralded as a victory for employers, it still requires employers to provide the 30 minute duty free meal period, and keep records to prove it. To satisfy these requirements, employers should:

  • Have a written policy providing a 30 minute duty free meal period to non-exempt employees who work 5 hours or more;
  • Provide the meal period no later than the start of an employee’s sixth hour of work;
  • Allow employees to leave the work area or premises during the meal period;
  • Communicate the policy to employees;
  • Schedule meal periods to provide work coverage and keep copies of the schedules for 4 years as evidence that employees were provided the duty free meal periods;
  • Keep accurate time records when employees clock out and clock back in from meal periods;
  • Do nothing to coerce or encourage employees to skip or shorten the meal period.

In my next column, I’ll give more information on the meal period requirements and discuss the timing of meal periods, waiver of meal periods, and other wage and hour laws that are impacted by the Brinker decision.
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