Another California Appellate Court Concludes That Employers Need Not “Ensure” Employees Take Meal Breaks

First Quarter 2011Newsletters California Update Employment Law

Employers anxiously await the California Supreme Court’s decision in Brinker Restaurant v. Superior Court (Case No. S166350, review granted Oct. 22, 2008) as to whether employers can merely offer their employees meal breaks or whether they must instead ensure that the employees take the breaks. Meanwhile, California appellate courts continue to side with employers on the issue. The Supreme Court recently granted review of the latest case to hold that employers must provide employees with breaks but need not ensure employees take breaks (Hernandez v. Chipotle Mexican Grill (2010) 189 Cal.App.4th 751). While we hope that this trend indicates the way the Supreme Court will ultimately come down on the issue, until the Supreme Court makes a decision, cautious employers should continue to:

  • Ensure that employees are taking a 30-minute uninterrupted meal period when the employee works in excess of five hours;
  • Ensure that employees are taking a second 30-minute uninterrupted meal period if the employee works in excess of 10 hours;
  • Provide employees with penalty pay (one hour of pay) if and when they do not receive a meal period; and
  • Maintain records evidencing that employees took their meal periods or, where appropriate, have waived a meal period in writing.