Brian Ashe Published in The Recorder
“’Brinker’ Issues Explained”

An article by Employment partner Brian Ashe was published in the December 13 issue of The Recorder. The article discussed Brinker Restaurant v. Superior Court, an employee meal and rest case. The California Supreme Court’s decision on the case will decide whether employers need only make meal breaks “available” to employees, or must “ensure” that the breaks are taken.

Brian explained the potential consequences of the court’s decision. “This debate is important to California employers,” he emphasized. “If they must ‘ensure’ that meals are taken by nonexempt employees, then they must strictly police meal breaks to ensure that they are taken. If, however, employers need only ‘make available’ meal breaks, then effective communication of a meal-break policy should discharge the employer's duty.”

Another factor under consideration in Brinker is the idea of when a break needs to be taken within a shift of five hours or more. Can an employee’s break be placed anywhere within his/her shift, or must it be placed so that the employee never works more than five consecutive hours?

“If a ‘rolling five hour’ rule is adopted, then employers will be forced to structure meal breaks for nonexempt employees very close to the middle of their shift, regardless of the desires of the employees,” Brian warned. “Otherwise, a second meal break (or a penalty for a missed meal break) will be due to employees who work five hours after taking their first meal break even though they are only working a standard eight hour shift. Most businesses will try to avoid such gross inefficiencies by requiring meal breaks in the middle of the shift.”