Brinker Meal and Rest Case Decided

In 2012, the California Supreme Court decided an important meal and rest break case, Brinker Restaurant Corp. v. Superior Court.

The question of whether employers must ensure breaks are taken or must simply provide breaks has been a source of significant litigation in both federal and state courts.

The California Supreme Court ultimately ruled in Brinker's favor on the most critical part of the decision – holding that employers do not have to ensure employees take their meal breaks. Once the meal period is provided, there is no duty to police meal breaks to ensure no work is being done.

The unanimous ruling was largely a win for California employers, but is not without potential pitfalls. Employers with vague policies may expose themselves to increased liability, and the decision makes clear that meal and rest break issues are still subject to class action lawsuits.

Employers with specific questions regarding their meal and rest break practices should consult legal counsel. CalChamber members can learn much more about the Brinker decision's impact on employers from HRCalifornia.com, where Brinker is discussed in greater detail.

Meal Break Obligations In California

You cannot employ someone for a work period of more than five hours without providing an unpaid, off-duty meal period of at least 30 minutes. The first meal period must be provided no later than the end of the employee's fifth hour of work.

Take the Meal and Rest Breaks Quiz >
Use this quiz to test your knowledge of regulations related to meal and rest breaks.

The employer satisfies its legal obligation to provide an off duty meal period to its employees if it:

• Relieves its employees of all duty.
• Relinquishes control over their activities.
• Permits them a reasonable opportunity to take an uninterrupted, 30-minute break.
• Does not impede or discourage them from doing so.

A meal break can be unpaid only if all of the above conditions are met.

When a work period of not more than six hours will complete the day's work, the meal period may be waived by mutual consent of the employer and the employee.​

Second 30-Minute Meal Break

Employers must provide a second meal break of no fewer than 30 minutes for all workdays on which an employee works more than 10 hours. The second meal break must be provided no later than the end of an employee's 10th hour of work.

An employee can waive the second meal period only if all of the following conditions are met:

• The total hours worked on that workday are not more than 12.
• You and the employee mutually consent.
• The first meal break of the workday was not waived.

On-Duty Meal Breaks

Employees can take on-duty meal periods only in certain limited circumstances. An on-duty meal break must meet all of the following conditions:

• Is permitted only when the nature of the work prevents an employee from being relieved of all duty.
• Must be agreed to in writing by you and the employee.
• Must be paid.
• Can be revoked at any time in writing by the employee, except under Wage Order 14 (Agricultural Occupations).

Employers take note: Use caution and consult with legal counsel before authorizing on-duty meal breaks. On-duty meal periods have been upheld only in very limited circumstances.​

10-Minute Rest Break Obligations

Employers must authorize and permit uninterrupted rest breaks for all nonexempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of 10 minutes for every four hours worked, or "major fraction" thereof. Anything over two hours is considered by the courts to be a "major fraction" of four.

As a general rule, and insofar as practicable, the rest break must be in the middle of each four-hour work period. In an eight hour day, one rest break normally falls on either side of the meal break. Though this is the general rule, there is no absolute obligation to permit a rest period before a meal period.

According to the California Supreme Court in Brinker, "[s]horter or longer shifts and other factors that render such scheduling impracticable may alter this general rule." Employers are given some latitude as they may "deviate from that preferred course where practical considerations render it infeasible."

Employers should be cautious about departing from the general rule to provide rest breaks in the middle of each work period and should consult with counsel if practical considerations unique to their industry appear to warrant a departure from the general rule.

Employers must treat rest periods as hours worked, and must pay rest periods as time worked. According to a California Supreme Court decision in Augustus v.​ ABM Security Services, Inc., employers must relieve employees of all duties during rest breaks and relinquish any control over how employees spend their break time. There are very limited exceptions to this rule in certain industries, such as for ambulance personnel and safety-sensitive positions in the petroleum industry.​

Consequences for Failing to Provide Meal and Rest Breaks

California employers face costly consequences for violating work break laws. Court decisions have increased the potential for large financial fines.

Missed Meal Break

For each workday that you fail to provide an employee a meal break, as required, you owe the employee one additional hour of pay at the employee's regular rate. The additional hour of pay is a wage owed to the employee. Employees have up to three years to file a claim for unpaid wages.

Missed Rest Break

If either rest break is not given or is interrupted, you owe the employee one hour of pay at the regular rate of pay, which you must include in the next paycheck.

Missed Meal and Rest Breaks

There has been a great deal of discussion about the premium wage employers owe an employee who misses a meal break and a rest break in one day: Is it one hour of pay? Or is it two hours of pay because two violations occurred?

In United Parcel Service v. Superior Court of Los Angeles County, a California Court of Appeal ruled that it is two hours of pay. T​here are two separate remedies because the premium wage requirement is contained in two separate sections of the Wage Orders.

Related Resources

California Meal and Rest Breaks Quiz »
This quiz will test your knowledge about meal and rest breaks in California.​

Meal and Rest Break Forms

​Meal Break Waiver - Employee Shift 6 Hours or Less »
Use this form when a nonexempt worker will work a shift of six hours or less and both you and the worker wish to waive the required 30-minute meal break.

Meal Break Waiver - Employee Shift 6 Hours or Less - Spanish »
Use this Spanish-language form when a nonexempt worker will work a shift of six hours or less and both you and the worker wish to waive the required 30-minute meal break.

Meal Break Waiver - Second Meal »
Use this form when a nonexempt worker's shift will be more than 10 hours but less than 12 hours, the worker has not waived his/her first meal break, and both you and the worker wish to waive the second required 30-minute meal break.