On April 12, 2012 the California Supreme Court issued its long-awaited decision in Brinker Restaurant v. Superior Court. Although the case was primarily brought to determine whether class certification was appropriate for the various causes of action, the court specifically answered threshold questions raised in the case regarding meal periods and rest breaks in California.

Rest Breaks –The Supreme Court first considered how to determine the appropriate number of rest breaks. IWC Order 5 states the following:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.

The court adopted the literal definition of “major fraction thereof” finding that an employee must be given a ten-minute rest period for every four hour segment of the day plus any additional period of more than 2 hours. The only exception is, as stated in the Order, when an employee’s entire workday is 3½ hours or less. Thus, employees must be given one break for daily work of 3½-6 hours; an additional break if the employee works between 6-10 hours; a third break for a work day of 10-14 hours, etc. The Labor Commissioner has followed this interpretation for some time. However, the only requirement with regard to timing of rest breaks is that the rest period must be “insofar as practicable” in the middle of each work period. Assuming this condition is met, no particular sequence of rest and meal breaks is required by the Orders. Thus, a rest break can be taken before or after a meal break.

Meal Periods–The Supreme Court concluded that an employer “must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work”. Thus the employer’s obligation is to provide a meal period which is “off duty”. This means that the employee need not perform any work for at least 30 uninterrupted minutes during which time the employee is free to leave the work premises. The court did not find an affirmative obligation on the part of the employer to ensure that no work is done during this time. Rather, the focus is on the employer relinquishing control over the employee during this period of time. However, even when the employer has properly provided the meal period (and, therefore, is not liable for the 1 hour penalty), if the employee continues to work and the employer knows, or has reason to know, the employee is continuing to work, the employee must be paid regular compensation for the time worked.

Furthermore, there is no requirement that the employer provide a second meal period if the employee works more than 5 hours after the end of the first meal period, as long as the employee does not work more than ten (10) hours total in the day. Thus, there is no “rolling” 5 hour period requirement after the first 5 hour period of the work day.

What this means for you

For most employers this decision is very welcome news. Supervisors or managers no longer have to “police” when meal periods are taken, as long as the employees are aware that they can take a meal period after no more than 5 hours worked without repercussions. However, if an employee decides to continue working (during which time they will be paid) the employer will not be required to pay an additional 1 hour penalty. Thus, the employee is now being given greater flexibility with regard to the timing of his/her meal period–assuming the employer wishes to grant this flexibility. Keep in mind that the decision to keep working must be the employee’s, not influenced or pressured by the employer. To do so would make the employer liable for the penalty for a meal break that was not provided.

Notably, even though the employer is not required to make employees take meal breaks the employer still may do so. An employer can still require employees to take a meal period (and take it at a particular time) as a matter of its own internal policy, to avoid additional paid time to an employee and/or to make sure that employees are working during times determined by the employer.

Although employers continue to be required to give rest breaks for every 4 hour period and then any remaining period over 2 hours, the employer has been given additional flexibility in the scheduling of rest breaks (before or after a meal period) if it is not practicable to allow rest breaks in the middle of the work period.

For assistance in implementing your rest and meal breaks based on this decision, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or