Meal Periods - What does the Brinker Case Mean for California Employers

Last Updated: May 2, 2012

After 3 years since it first granted hearing the case, the California Supreme Court finally issued a decision in the now famous Brinker Restaurant Corp. v. Superior Court. The fundamental question at hand was whether or not an employer is required to make sure that employees take their required meal periods. The court ruled that an employer has met its obligation to “provide” a meal period by “relieving the employee of all duty,” but is not required to “ensure” that meal periods are actually taken. In addition to this good news that employees can now opt out of a meal period, the Brinker decision also clarified the timing of these breaks, but also threw us a few curve balls…


Existing California law states that, “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” Additionally, “An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” If a meal period is missed or is cut short, the employer is responsible for paying the employee a penalty of one hour extra pay.

The Old Questions

There have been a number of questions that employers and the courts have struggled with:

  • Does the employer have to police its meal period policy?
  • If an employee decides to skip a meal period, does the employer still need to pay the 1 hour penalty?
  • When does the first meal period actually have to happen?
  • Does the eligibility for a second meal period and its timing depend upon when the first meal period was taken?

Brinker’s Answers on Meal Periods

The Brinker decision clears up a number of those old questions and provides increased flexibility for employers and employees. Here’s what they said:

  • Meal periods are considered “provided” as long as they are “made available” to employees. If the employee is afforded the opportunity to be relieved of all duty, the employer has met its obligation. The employer, however, cannot pressure an employee to skip a break.
  • Employers do not need to ensure that meal periods are actually taken.
  • Employees may elect to skip a meal period or take a short break without the payment of any penalty. Regular wages are due for any time actually worked including any overtime that might incur as a result of the missed or short meal period.
  • If the employer prevents the employee from taking the meal period or causes the break to be less than 1/2 hour, the penalty is still due.
  • The required first 1/2 hour meal period must begin no later than the end of the employee’s 5th hour of work. The second meal period must begin before the end of the 10th hour of work.
  • “Early” lunching is permitted and does not cause the employee to be eligible sooner for a second meal period. In other words, the employer does not have to provide a meal period every 5 hours (no rolling meal periods).
  • On-Duty meal period waivers and waivers for shifts that do not exceed 6 hours remain unchanged.

Brinker’s Surprises on Rest Breaks

Existing California law requires employers to provide 10-minute paid rest breaks to employees for each four hours of work “or major fraction thereof.” In what took many of us by surprise, Brinker ruled that “major fraction thereof” means 2.5 hours.

  • Existing law requires no rest breaks for shifts of less than 3.5 hours, this remains unchanged.
  • One 10-minute rest break is due for shifts lasting from 3.5 to 6 hours.
  • Two 10-minute rest breaks are due for shifts that are longer than 6 hours and up to 10 hours.
  • Three 10-minute rest breaks are due for shifts that are longer than 10 hours and up to 14 hours.
  • The 1st rest break of the day does not necessarily have to come before the 1st meal period.
  • The employer must make a good faith effort to provide rest breaks as close to the middle of a shift as possible, but can deviate where practical considerations render it infeasible. However, the Court cautioned that during a normal 8 hour day, the employer would be hard-pressed to justify having both rest breaks either before or after the meal period.
  • As before, the employer must provide rest breaks, but is not required to ensure they’re taken. However, if the employer causes the break to be missed, the one-hour penalty must be paid.

The New Questions

While providing a lot of very clear guidance and clarification, the Brinker ruling unfortunately raises its own set of new issues:

  • How does an employer prove that it made the lunch break available? Brinker has told us that what will suffice will vary from industry to industry. What might be some best practices?
  • If “early lunching” and skipping meal periods are now permitted, can an employee now elect to take late lunches that begin after the end of the 5th hour of work?
  • As the burden of proof is on the employer to show that missed or short lunch breaks were taken at the discretion of the employee, how does the employer prove this?
  • Now that California law will allow the employee to take a short meal period, can this break be unpaid? Federal law generally only allows a meal period to be unpaid (with narrow exceptions) if it is no shorter than 1/2 hour.

What should employers do?

As the Brinker ruling takes effect immediately, employers should:

  • Decide if you want to allow employees to skip or take short meal periods;
  • Update your employee handbook polices on meal periods and rest breaks;
  • Decide how you will prove that you are making meal periods available;
  • Review your timekeeping systems;
  • Decide how you will document that the employee has requested to skip or take a short meal period;
  • Determine what your pay practices will be with regards to short meal periods;
  • Educate your managers, your payroll department, and your employees on the new rule

Come join us at Vantaggio HR’s offices for an interactive training session on the impact of Brinker on an employer’s policies and practices. Thursday, May 10th from Noon to 1:30 pm. Click here to sign up for the Lunch & Learn and for more information.

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