What Are Employers To Do In The Wake of Brinker v. Superior Court?

It was a pleasure conducting the presentation on “Meal and Rest Breaks in California: Why the Brinker Ruling Is Good News for Employers, and Where Caution is Still Required” through Business & Legal Reports.  It was wonderful to have such a large audience, as well as great follow-up questions.

I’ve had a lot of request for the concluding points I made about what employers should do while we are waiting for the California Supreme Court to determine whether or not it will review the Brinker v. Superior Court (Hohnbaum) decision.   So here are my concluding remarks I made during the presentation:

  1. Employers should continue to have a strict written policy on providing meal and rest breaks and continue to monitor that employees are actually taking meal breaks.
  2. Make sure management knows about and enforces these rules.
  3. Record meal breaks! This is already an obligation of California employers, and the Brinker decision does not change this obligation.
  4. Policies should require employees to come forward to report if they have been forced to work through a meal break.
  5. Brinker’s policies, which were found to be valid by the appellate court, are a good example of policies California employers should have in place.  For example, Brinker had a written policy titled “Break and Meal Period Policy for Employees in the State of California.” Brinker also required its employees to sign a form stating “I am entitled to a 30-minute meal period when I work a shift that is over five hours” and that “If I work over 3.5 hours during my shift, I understand that I am eligible for one [10-]minute rest break for each four hours that I work.”  Brinker’s policy also stated that an employee’s failure to abide by the policy could result in termination. The court held that this ultimately was sufficient under California law to “provide” meal and rest breaks, only if the defendant has taken steps to establish and communicate the policy. Then if an employee fails to take a meal or rest break voluntarily, the employer is not liable for damages.

Until we know whether or not the California Supreme Court will grant review of the Brinker decision, employers should definitely be taking proactive steps to protect themselves.


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