Question:

I heard that a new court case just came out on meal periods. Is there finally a decision on whether an employer has to ensure that employees take their meal breaks?

Answer:

Last month a new case addressing the meal period issue was published – Hernandez v. Chipotle Mexican Grill. Although this case provides some guidance to employers, it is still not a definitive answer to the question of whether employers need to ensure their employees take a meal period, or just provide employees the opportunity to take a meal period. Mr. Hernandez, a non-exempt hourly employee, was attempting to bring a class action against Chipotle Mexican Grill for denying both meal and rest periods. He claimed that managers denied or interrupted employees’ breaks two to three times a week.

Chipotle had several policies that were more generous than the legal requirements under California law. It required managers to provide employees with a 10-minute rest break if they worked 3½ hours or more. The legal requirement is that a 10-minute rest period be provided for every four hours, or major fraction thereof, worked. Chipotle directed employees to record their meal and rest periods, although the wage order only requires that meal periods be recorded. It paid for meal periods although California law does not require paid meal periods. It provided employees with free food to encourage them to take their meal periods.

Chipotle’s written policies also mandated employees to take one uninterrupted 30-minute meal break if they worked over five hours in a workday, and two meal periods if they worked more than 10 hours in a workday. Chipotle’s policies prohibited employees from skipping breaks.

Chipotle argued that it had met its obligation to “provide” employees with meal and rest breaks. Mr. Hernandez argued that an employer must “ensure” that meal periods are taken. This question is currently being reviewed by the California Supreme Court; however, the trial court in the Chipotle case concluded that the California Supreme Court is “likely” to decide that California employers are required to provide employees with the ability to take breaks, but not to ensure that breaks be taken.

The Court of Appeal agreed with the trial court. In determining what it means to provide employees with the ability to take meal breaks, the Court noted that an employer that fails to schedule meal periods and pressures employees to reach certain work goals, making it virtually impossible for them to take their meal periods, deprives employees of their meal periods.

What does this decision mean for employers? The California Supreme Court has yet to reach a decision on this meal period issue, raised by the Brinker Restaurant Corp. v. Superior Court of San Diego County case, which was appealed over two years ago. In Brinker, the Court is expected to clarify whether under California law, an employer has an affirmative duty to ensure that employees actually take their meal periods, or whether it must make the meal period available and afford the employee the opportunity to take it.

Therefore, employers must wait for the Brinker decision for a definitive answer. In the meantime, employers should have written policies stating that employees who work more than five hours per day will receive a duty-free meal period of not less than 30 minutes unless the total work period per day is no more than six hours, in which case the meal period may be waived by mutual consent of the employer and employee. The first meal period should commence prior to the end of the fifth hour of work. The policy should state that employees who work more than ten hours in a workday will receive a second duty-free meal period of not less than 30 minutes unless the total hours worked in a workday are no more than 12 hours, in which case the second meal period may be waived by mutual consent of the employer and the employee if the first meal period is not waived. Include the policy in the employee handbook, and require the employee to sign an acknowledgment of receipt of the handbook. Employers should ensure that employees’ rest and meal periods are not interrupted by work. Employers must also require employees to clock in and out when they leave and return from their meal breaks. Finally, if a meal or rest break is late, missed, or interrupted, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay.

Until the Supreme Court issues its decision in Brinker, the safest policy is to ensure that employees take their meal periods.
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