Decision gives practical framework for obeying Brinker

Under California law, employers must generally provide employees with unpaid 30 minute meal breaks relieving them of all duties. This obligation is excused, however, when the nature of the job prevents an employee from being relieved of all duties, and the employee agrees in writing to an on-the-job paid meal period. Unless one of these two options is met, the employer must pay the employee an additional hour of wages for each workday in which an off-duty meal period is missed.

The California Supreme Court in Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1017 (2012), outlined the contours of this law, noting that "what will suffice [for meal periods] will vary from industry to industry." The California Court of Appeal in Driscoll v. Graniterock Co., 6 Cal. App. 5th 215, 224 (2016), clarified the Brinker standard and provides guidance to employers on best practices for avoiding liability for potential violations of the Labor Code.

Brinker Standard on Meal Periods is Necessarily Industry-Dependent

In Brinker, a class of restaurant employees sued their employer for allegedly failing to provide off-duty meal periods or to otherwise pay an additional hour of wages for each workday that an employee missed a meal period. See California Labor Code Sections 226.7(c), 512(a). On appeal, the Supreme Court set forth the standard for providing off-duty meal periods. Employers must: (1) relieve employees of all duty; (2) relinquish control over their activities; (3) permit them a reasonable opportunity to take an uninterrupted 30-minute break; and (4) not impede or discourage them from doing so. The court explained that an employer is not obligated to schedule or otherwise "police" meal breaks to ensure no work is performed. Importantly, the court underscored that the Brinker standard is necessarily industry-dependent, reasoning that it could not "delineate the full range of approaches that in each instance might be sufficient to satisfy the law."

The Court of Appeal clarified the Brinker standard in Driscoll. There, a putative class of concrete mixer drivers sued their employer for failing to provide off-duty meal breaks or pay premium wages. The employees had signed written waivers of their right to off-duty meal periods pursuant to the Industrial Welfare Commission's Wage Order 1-2001, which governs the manufacturing industry. The order provides that employers need not provide off-duty meal periods and can instead provide paid on-the-job meal periods when "the nature of the work prevents [him or her] from being relieved of all duty" and the employee signs a written waiver agreement that allows the employee to revoke the waiver at any time.

The Driscoll court upheld the drivers' waivers made under Wage Order 1-2001, reasoning that (1) the written agreements satisfied these requirements, and (2) the nature of the ready mix concrete industry made advance scheduling of meal periods nearly impossible, given that a driver's ability to take a duty-free lunch period is dependent on the status of the concrete in his or her truck and the nature of the construction job the driver is attending.

Likewise, in affirming judgment in favor of the employer, the court rejected the employees' argument that the employer's policy required them to waive their right to off-duty meal periods. Rather, the policy provided drivers the opportunity to take an off-duty meal period each day - allowing them to freely choose whether to take or not take such meal periods. Such a policy was consistent with the Brinker standard. There also was ample evidence at trial showing that the employees were aware of their right to off-duty meal periods, and no evidence that any driver was ever denied an off-duty meal period when requested.

Best Practices

Employers can infer several best practices from Driscoll based on the types of evidence the court found persuasive in evaluating compliance with meal period obligations. Most importantly, employers should ensure their employees are aware of their right to off-duty meal periods. Although there are different means of achieving this, the Driscoll court highlighted three steps it considered effective in establishing employee awareness. First, an employer can issue a legally compliant employee handbook discussing the availability and right to 30-minute off-duty meal periods. Second, to bolster the effect of the handbook, the employer can seek signed acknowledgments from each employee confirming that he or she reviewed the handbook. Third, the employer can post applicable wage orders in all public areas, such as breakrooms, thereby further advising employees of their rights.

Further, where waiver agreements are permitted for a particular industry by an applicable wage order, employers should closely review all requirements. For example, as evidenced by Driscoll, employers should objectively analyze whether the nature of the employer's work prevents an employee from being relieved of all duty. Without appropriate analysis, an employer may be vulnerable to potential Labor Code penalties for failing to provide off-duty meal periods or pay premium wages in lieu of them. Finally, employers should consider processes for tracking revocation of any waiver agreement in order to accommodate employee requests for off-duty meal periods.

In sum, Brinker and Driscoll provide employers with a practical framework to manage compliance with meal period labor laws.