Five years after the California Supreme Court in Brinker Restaurant Corp. v. Superior Court clarified standards regarding an employer’s duty to provide meal and rest periods, many employers continue to find these rules challenging to implement in the real world. Moreover, because the Brinker court was applying the law under a statute that until recently did not apply to agriculture (Labor Code section 512) and a different wage order than the wage order covering agricultural occupations, ag employers need to be aware of how ag may be treated differently in some respects. Finally, employers need to be cognizant of a recent California Supreme Court decision rejecting on-duty and on-call rest breaks.
Brinker clarified the rules… for some industries
In 2012, the California Supreme Court in Brinker clarified the obligations to provide meal and rest periods for most industries. With regard to meal periods, the Court ruled that employers are not required to “ensure” that 30-minute unpaid meal periods are in fact taken, but rather the meal periods must be “provided.” The Court clarified that to “provide” a meal period means that the employer must relieve employees of all duty, relinquish control over their activities and permit them a reasonable opportunity to take an uninterrupted 30-minute break. Moreover, employers may not impede or discourage employees from taking their meal periods.
As for the timing of meal periods, the Court explained that employers must provide employees a first meal period that starts after no more than five hours of work, absent a valid waiver. After 10 hours, employees are entitled to a second meal period. The Court also rejected the plaintiff’s argument that employees are entitled to a meal period every five hours (a “rolling five-hour” standard). This means that assuming an employee who works more than six hours in a day starts work at 7:00 a.m., he or she must be provided a 30-minute meal period by no later than 12 noon. A second 30-minute meal period must be provided if the employee works more than 10 hours in a day, but the employer and employee can waive the second meal period by mutual consent if the first meal period is not waived and the total hours worked does not exceed twelve.
What about Wage Order 14 Employees?
While Brinker provides helpful guidance, it must be noted that the Court was applying the meal and rest obligations under Industrial Welfare Commission Wage Order 5 (the wage order governing the public housekeeping industry, which was at issue in that case) and Labor Code section 512 which codified the meal period requirements into statute. Ag had long been exempted from Labor Code section 512 as a result of the California Legislature’s enactment of AB 60, the Eight-Hour-Day Restoration and Workplace Flexibility Act. However, AB 1066 (the new ag overtime law), which went into effect January 1, 2017, removed the Ag exemption from the Labor Code. AB 1066 directs the Department of Industrial Relations to update Wage Order 14 consistent with the Labor Code but that has not yet happened. So ag employers must presumably still comply with Wage Order 14.
With regard to meal periods, Wage Order 14 at section 11 says:
“Every employer shall authorize and permit all employees after a work period of not more than five (5) hours to take a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee. Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.”
First, while Wage Order 14 requires employers “authorize and permit” as opposed to “provide” a meal period (as stated in Labor Code sec. 512), most practitioners agree that this is a distinction without a difference. Ag employers have the same obligation to relieve its employee of all duty for an uninterrupted 30-minute meal period.
The question of timing of meal periods under Wage Order 14 is a bit more nuanced. The Brinker court ruled that the first meal period must occur no later than the end of an employee’s fifth hour worked, and a second meal break no later than the end of an employee’s 10th hour worked. Labor Code section 512 says that employees who work no more than 12 hours may waive the second 30-minute meal period by mutual consent of the employee and employer only if the first meal period was not waived.
But Wage Order 14 is still out there and it says “…except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee.” This means that for an employee who worked from 7:00 a.m. until noon and took a 30-minute meal period to 12:30 p.m., the conservative view is that there can be no waiver of the obligation to provide a second meal period if that employee works past 6:30 p.m., since she would be working more than six hours in the work period to complete the day’s work. Conservatively speaking, this means that second meal period waivers may not be effective if an agricultural employee works more than 11 hours in a day. It is important to keep in mind that a second meal period waiver is a waiver from the employer’s obligation to provide a second meal period; the employee may always forgo her meal period, unless the company requires she take it. Hopefully, the DIR will soon comply with AB 1066 and reconcile Wage Order 14 to be consistent with Labor Code section 512 so that there can be more clarity as to the ag employer’s meal period obligations.
Potential issues arise when the “nature of the work” prevents an employee from being relieved of all duty for at least 30 minutes based on the necessary job duties. For example, truckers moving leafy greens from the field to the cooler are subject to strict “cut-to-cool” windows mandated by the product’s perishability and food safety protocols, and cannot leave their trucks to take a lunch break. While the Division of Labor Standards Enforcement (DLSE) has set a very high bar for finding when the “nature of the work” exception applies, this may well be a valid example. Nevertheless, an on-duty meal period should be used only in limited situations when an off-duty meal period simply cannot be provided, and only with the advice of experienced employment counsel.
What about rest periods?
Regarding rest periods, the Brinker Court clarified that employers must “authorize and permit” employees to take paid 10-minute rest periods, when practicable, in about the middle of each four-hour work period “or major fraction thereof.” Rest periods need not be given when the total time worked on a day is less than 3½ hours. The Court held that employers must make a “good faith effort” to authorize and permit rest breaks in the middle of each work period, but may schedule breaks at other times if it is impracticable to schedule them in the middle of the work period.
The court also provided a definitive meaning of “major fraction thereof,” (i.e., more than half) finding that 10 minutes of paid rest time is due for shifts of 3½ to 6 hours; 20 minutes of paid rest time is due for shifts of more than 6 and up to 10 hours; 30 minutes of paid rest time is due for shifts of more than 10 hours; and so on.
These rules regarding rest periods apply to virtually all employers, including ag employers, but may cause consternation with some employees. Take for example, ag workers who are scheduled to work a seven hour day. They begin work at 7:00 a.m., take their first rest break at 9:00 a.m., and their meal period at noon. They return to work at 12:30 and work to 2:30 when the shift ends. They must be authorized and permitted to take a second 10-minute rest period during the middle of that second two-hour shift. Many employees in this situation don’t want to take a rest period, and would rather work straight through to the end of the workday. While the law does not require employers to make their employees cease work for their rest periods (or their meal periods for that matter), many employers take the approach that breaks must be taken, lest they are accused in a lawsuit of having a rest period policy but not actually providing the rest periods. If all the employees on a crew routinely skip their second rest period, for instance, a disgruntled employee may say they were denied their rest periods, even if the rest period was actually authorized and permitted. This is a no-win situation for the employer.
California Supreme Court Rejects On-Duty or On-Call Rest Breaks
All employers should take note of the California Supreme Court decision in Augustus v. ABM Security Services, Inc. which held that California law does not permit employers to require employees to take on-duty or on-call rest periods. This is a very significant case for employers who require employees to monitor their email, phones or radios while taking on-call rest periods. Employers who cannot relieve non-exempt employees of all duties during required rest breaks may need to pay rest break premiums if they cannot provide an alternative off-duty rest break. Employers who use on-duty or on-call rest breaks should consult with employment counsel to mitigate potential liability in this area.