Seyfarth Synopsis: Does carrying a pager nullify a rest break? What about the possibility of being tapped on the shoulder by your boss? Or being called on your cell phone? The California Supreme Court considered these and other scenarios during an hour-long oral argument on September 29, as it asked, What does it mean to
Seyfarth Synopsis: California’s rules on rest breaks are still developing. Recent cases have addressed the timing of rest breaks, and whether employees (particularly those who remain “on call”) must be relieved of all duty during breaks.
Over the past decade, plaintiffs have filed hundreds of class actions alleging that California employers have failed to “provide” meal breaks. The California Supreme court finally handed down some rules in 2012, in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004:
- An employer may not employ a person for more than 5 hours in a day without providing a meal break of at least 30 minutes, or more than 10 hours without providing a second 30 minute meal break.
- An employer must relieve the employee of all duty for a required meal break, but the employer need not ensure that the employee does no work: “The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and does not impede or discourage them from doing so.” Brinker, 53 Cal. 4th at 1040.
- Absent a waiver by the employee, a first meal break must begin no later than the start of an employee’s sixth hour of work.
- Absent a waiver by the employee, a second meal break must begin no later than the start of the 11th hour of work, but the second meal break may begin later than 5 hours after the end of the first meal period.
But, you may ask, does the government mandate over employee eating schedules know no bounds? Are there no exceptions?…
Recently, we kicked off the blog series, The Battle After Brinker, to explore the current controversy over the meaning of the California Supreme Court’s decision in Brinker. This week, we examine a recent skirmish—the proceedings that occurred in the Brinker case …
When the California Supreme Court issued its landmark decision in Brinker last year, employers were excited about the apparent legal clarity it offered in the area of meal and rest breaks. We finally had our explanation of what an employer must do to “authorize and permit” meal and rest breaks, as Brinker succinctly declared: “an employer is obligated only to ‘make available’ meal [and rest] break periods, with no responsibility for whether they are [actually] taken. [But] the employer is not obligated to police meal [and rest] breaks and ensure no work thereafter is performed.”
In Brinker’s immediate wake, employers could feel confident in their meal and rest break rule compliance, so long as they (a) relieved employees of all duty, relinquished control and permitted them a reasonable opportunity to take breaks and (b) did not impede or discourage employees from taking breaks.
But now, the breadth of Brinker’s clarity is under attack. In this blog series, The Battle After Brinker, we will explore the current controversy over Brinker and what it means. Since Brinker was decided, the battleground has shifted from the text of the Wage Order to the text of Brinker’s explanation. While we now know that the employer’s duty is not to police breaks so as to ensure that they are actually taken, disputes can still arise over the meaning of an employer’s duty to make breaks available and the ramifications of that duty on the employer’s break policies and on the viability of meal and rest period class actions…