QUESTION REMAINS WHETHER CALIFORNIA EMPLOYERS HAVE TO POLICE EMPLOYEES' MEAL BREAKS

The California Supreme Court will decide the issue

Earlier this year, in Brinker Restaurant Corporation v. Superior Court, a California Court of Appeal concluded that "employers need only make meal breaks available, not ‘ensure’ they are taken." Brinker specifically noted that public policy does not support the notion that employers must "ensure" that meal periods are taken. If that were the case, said the Court of Appeal, employers would be required to police their employees and force them to take meal breaks. As expected, the plaintiffs in the Brinker case petitioned the California Supreme Court to review the issue. In October, the Supreme Court agreed to accept review.

In the meantime, the California Labor Commissioner will follow the appellate court's rationale

Angela Bradstreet, the State Labor Commissioner, responded to the Supreme Court's decision to accept review in Brinker by issuing a memorandum concluding that the meal period statute and regulation, as well as state and federal case law interpreting the meal period obligations, demonstrate "compelling support for the position that employers must provide meal periods but do not have an additional obligation to ensure that such meal periods are actually taken."

And another appellate court rules the same way as Brinker

Several days after the Supreme Court granted review in Brinker, another appellate court applied the same type of reasoning and concluded that the "meal period laws do not obligate employees to take meal periods or employers to ensure that meal periods are taken." The more recent case is Brinkley v. Public Storage, Inc., 167 Cal.App.4th 1278 (2008).

What this means for employers

In the balance hangs whether employers with appropriate personnel policies and practices for taking meal periods can be liable to employees who violate those policies, and then sue their employer for failing to enforce its own policies. Until Brinker is decided by the Supreme Court, California employers should continue to: (1) maintain written policies that comply with the Labor Code and the wage order that applies to the company’s industry; (2) make time available for meal periods and rest breaks; (3) require employees to record their work time, and unworked time, accurately; and (4) continue to monitor compliance - and non-compliance - with company policies. Employers who rely on the rationale of the Appellate Court in Brinker, the Labor Commissioner's memorandum, or other authorities could be doing so at their peril.