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Employers Finally Get Practical Advice on Meal Periods and Rest Breaks

Provide, Not Ensure, Prevails

April 13, 2012

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The long-awaited Brinker decision (all 54 pages of it) provides California employers with some clear guidance on how to comply with meal period and rest break laws. From the perspective of day-to-day operations, it's good news.

In a nutshell: An employer is required to relieve its employees of all duties, with the employee thereafter at liberty to use the meal period for whatever purpose she/he desires, but the employer NEED NOT ensure that no work is done nor that the full time is taken.

Meal Periods

An employer must afford its employees a "reasonable opportunity" to take an uninterrupted 30-minute break and cannot "impede or discourage" them from doing so.


An employer must relieve an employee of all duty for the designated period but need not ensure that the employee performs no work. Off-duty means free to leave the premises. An employer must pay an employee if it has knowledge (through a supervisor) that employees are working through meal periods, but that alone will not subject the employer to liability for premium pay. The employer is not obligated to police meal breaks.


Shifts up to 5 hours: one 30-minute meal break "after no more than five hours."

Shifts 5 to 10 hours: a second 30-minute meal period "after no more than 10 hours."

On-Duty Meals:

Still valid if circumstances permit. We recommend having employees sign daily waivers.


There are no timing requirements for meal periods other than the 5 and 10 hour limits.

Off the clock:

"That employees are clocked out creates a presumption they are doing no work." Liability is contingent on the employer's knowledge that employees continue to work.

Rest Breaks


Shifts up to 3.5 hours: no break.

Shifts 3.5 up to 6 hours: one 10-minute break.

Shifts 6 up to 10 hours: A second 10-minute break (decision says 20 minutes)

Shifts 10 up to 14 hours: A third 10-minute break (decision says 30 minutes)


No requirement that employees be provided a rest period before any meal period. Employers are subject to a duty to make a "good faith" effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course "where practical considerations render it infeasible."

Still open (i.e., "wiggle room" for class action plaintiffs' attorneys):

What is a "reasonable opportunity" to take a meal break? What makes a rest break in the middle of a shift "infeasible?"

Bear in mind:

The Court made a point of stating that IWC Wage Orders are entitled to "extraordinary deference" and are to be "accorded the same dignity as statutes."

For more information, please contact:

Alfonso Estrada

213-395-7633 Direct Phone
213-395-7618 Fax

Email Attorney


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