California Appellate Court Clarifies Employers'
Obligations Regarding Meal Period and Rest Breaks

August 6, 2008

In Brinker Restaurant Corporation et al. v. Superior Court, the California Court of Appeal for the Fourth District provided much-needed guidance to California employers regarding their obligations to provide meal periods and rest breaks to their employees. Brinker has been closely followed, including by California governor Arnold Schwarzenegger, who immediately issued a press release on the day Brinker was decided, stating, "We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today's decision promotes the public interest by providing employers, employees, the courts, and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

While the Brinker decision significantly clarifies the burden on employers regarding their obligations to provide meal periods and rest breaks and recognizes that employers have flexibility in scheduling them, employers should be cautious in modifying their current policies, as this case is widely expected to be appealed to the California Supreme Court for a final resolution of these issues.

Employer Meal Period Obligations

What is an employer's legal obligation regarding meal periods?

  • California Labor Code § 512 requires that employers may not "employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes."

What does it mean to "provide" a meal period?

  • In Brinker, the court held that in the context of the statute, the word "provide" means that employers need only "make available" the meal period to employees. According to Brinker, employers are not required to ensure that meal periods are actually taken. However, employers may not "impede, discourage, or dissuade" employees from taking meal periods. The court noted that requiring employers to force employees to take meal periods would place an undue burden on employers with numerous employees who are not able to remain in contact with their employer throughout the day.1

When must the employer provide the meal period?

  • In Brinker, the court held that the statute does not require a meal break for each five-hour period worked, but rather after five hours have been worked. Thus, if employees work between five to ten hours,2 they are entitled to only one meal period, regardless of when they take it. In Brinker, the plaintiffs were food servers who typically took their meal breaks in the first hour of work, and claimed that under the statute they should be entitled to a second meal break within the next five-hour period that they worked. The court denied their claim, clarifying that the statute does not require a meal period for every five consecutive hours worked, as long as a meal period is provided after the first five hours of work.

Employer Rest Break Obligations

What is the employer's legal obligation regarding rest breaks?

  • The California Industrial Welfare Commission wage orders generally require employers to "authorize and permit" non-exempt employees to take rest breaks of not less than ten minutes for each four hours worked, or major fraction thereof.

What does it mean to provide a rest break?

  • The Brinker court held that rest breaks, as with meal periods, need only be made available to employees. While they may not impede, discourage, or dissuade employees from taking rest breaks, employers need not ensure that rest breaks are actually taken.

When must the employer provide the rest breaks?

  • To determine when rest breaks should be provided, the Brinker court looked at the total hours an employee works daily. If an employee works four or more hours per day, he or she is entitled to a rest break after four hours of work. The court concluded that only those employees who work more than three and one-half hours, but less than four hours, are entitled to a rest break before the four-hour mark. Further, the court held that employers have discretion to decide the appropriate time for a rest break. If it is not practicable to have a rest break in the middle of an employee's work period "because of the nature of the work or the circumstances of a particular employee," the employer may move the rest break to an earlier or later time.

Practical Implications for California Employers

Although it is unclear if the Brinker decision will be reviewed by the California Supreme Court, there are a number of practical steps companies can take to help document legal compliance with applicable meal and rest period regulations:

(1) Communicate the company's meal and rest break policies to employees.

Because the Brinker court held that an employer "provides" meal periods and rest breaks by making them available, it is essential that employees know that they have the right to take such breaks. Accordingly, the company should ensure that its employee handbook or other written employment policies contain a clear articulation of its meal and rest break policies.

(2) Document that the policies have been distributed and received.

Requiring employees to sign the company's meal and rest break policy will create helpful documentation showing that they have read and understand the company's written formal policy and may help lessen employers' exposure to liability. In the event of litigation, a signed acknowledgment will serve as helpful evidence that the plaintiff or plaintiffs were on notice of their right to take meal periods and rest breaks.

(3) Provide training for supervisors on this policy.

It is important that managers and supervisors are properly trained regarding the applicable law on meal periods and rest breaks and how to comply with company policies. Often, large companies, such as Brinker, allow managers to handle meal and rest break compliance locally, without implementing a standard practice.

(4) Consider obtaining documentation that an employee has taken the meal period or voluntarily waived it.

Because the meaning of "provide" has not been finally determined, it also may be advisable to develop a way to document when employees take their meal periods or voluntarily choose to waive them. Having documentation of the company's efforts to ensure that employees took meal periods may help protect the company in the event of litigation.

(5) Be aware of potential overtime issues.

Employers should keep in mind that if employees waive their meal periods, there is a possibility that they may work overtime and require additional pay, as the time worked in lieu of a meal period is counted toward any overtime calculation. In California, if employees work more than eight hours in one day or forty hours in one week, they earn one and one-half of their regular rate of pay for each additional hour worked. If employees work more than twelve hours in one day, they are entitled to double-time pay for the additional hours over twelve.


While Brinker is an important decision, if the California Supreme Court takes the case, it is unclear whether it will affirm Brinker's holdings regarding meal and rest periods. Given this uncertainty and the fact that California courts recently have certified class actions based on alleged meal and rest period violations, we encourage you to contact a member of Wilson Sonsini Goodrich & Rosati's employment law practice to discuss appropriate preventive measures to ensure that your company is in compliance with applicable law and is positioned to best defend itself against any potential claims.

1 In Brinker, the court acknowledged that other California courts have reached different interpretations of the obligation to provide meal periods and rest breaks, but stated that none of these other cases contradicted its holding that there is no obligation on an employer to ensure that they are actually taken. For example, while the court in Cicairos v. Summit Logistics held that employers have an "affirmative obligation to ensure that workers are actually relieved of all duty" during meal periods, this case arose in a unique factual setting that has caused several other courts to distinguish it rather than follow it.

2 A second 30-minute meal period must be made available to an hourly employee who has worked more than ten hours per day, except for certain limited exceptions.