On July 22, 2008, the 4th District Court of Appeal in California concluded that meal and rest breaks need only be “made available” and not “ensured.”
- Employers cannot impede, discourage or dissuade employees from taking rest periods; they need only provide, not ensure, rest periods are taken;
- Employers need only to authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; and
- Employers are not required to provide a meal period for every five consecutive hours worked.
While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them, not ensure they are taken.
MEAL BREAK CHECKLIST FOR EMPLOYERS
1. Establish and communicate clear policies regarding meals and rest periods.
2. Train supervisors to make sure employees get all meal and rest periods that the law and applicable wage orders require.
3. Require all employees to record meal and rest breaks on their time sheets or other time records. Inform employees that failure to record breaks will result in disciplinary action.
4. Pay any penalty for a missed meal and rest period in the payroll period in which it occurred to assure adequate record keeping.
5. Properly classify employers as exempt or non-exempt.
6. Keep time sheets and other time and payroll records on file for a minimum of four years.
7. Periodically audit meal and rest break practices; overtime policies and practices; and time clock, time card and payroll practices.
In light of the new California ruling in Brinker Restaurant Corporation et al., v. The Superior Court of San Diego County, all employers should check their policy regarding meal and rest breaks. An Employer Meal Break Checklist is provided for your use in reviewing your existing policies and procedures.