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Employers only required to lead the horse to water

It’s the Law

Posted: July 31, 2008 9:29 p.m.
Updated: October 2, 2008 5:01 a.m.

Most of us are familiar with the old adage, “You can lead a horse to water, but you can’t make him drink.”

However, up until very recently, the courts seldom applied this practical logic to the world of California wage and hour law.

Two weeks ago, a California Court of Appeal acknowledged certain practical realities facing companies doing business in California by clarifying what steps an employer must take in order to “provide” an employee with a meal and rest period.

The court determined that, while an employer may not “impede, discourage or dissuade” its employees from taking meal and rest periods, it need only provide an opportunity, not actually ensure, that the employee avails himself of the meal or rest break.

Prior to the court’s July 22 ruling in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), the California Division of Labor Standards and Enforcement and several trial courts had routinely held employers responsible for “ensuring” that each employee actually took his or her meal periods throughout the work day.

For years, California employers (and their advocates) believed that the DLSE, which enforces California wage and hour laws and issues advisory opinions to employers, was using flawed logic by requiring an employer to act as a “policeman” for the wage and hour laws. Larger employers, especially those with thousands of employees and multiple shifts, argued that it was simply impractical to “ensure” that all of their employees were taking their mandated meal breaks. The court agreed and sided with those opponents of the DLSE standard, calling such a requirement “an absurd result” with an impossible burden on employers.

The court also held that the employer’s practice of providing employees with an “early lunch,” usually within the first few hours of an employee’s arrival at work, did not violate existing California law, even though that would mean that the employee might then work in excess of five hours in a given work shift without an additional meal period.

It should be noted that this decision will likely be appealed to the California Supreme Court by the employees on the losing end of the ruling, and the holding may be subject to change. Earlier this week, the DLSE issued an order providing that unless and until the Supreme Court disagrees with the rationale of the Court of Appeal and reverses the decision, all deputy labor commissioners must follow the rules set forth in the Brinker case, when addressing administrative meal and rest period claims.

From a practical, day-to-day standpoint, this new case may not dramatically impact how employers treat meal and rest periods.  It is still critical to have a clear company policy articulated that provides employees with: 1. a 10-minute rest period for every four-hour shift (or “major fraction thereof”); 2. a 30-minute, uninterrupted meal period for every shift longer than five hours (with a few exceptions); and, 3. two 30-minute meal periods for shifts greater than 10 hours in a day. Additionally, employers, managers and supervisors should continue their efforts to encourage employees to take their scheduled breaks, and in no event should they ever “impede, discourage or dissuade” employees from taking those meal and rest periods.

Finally, while this interpretation of the law helps employers at the trial stage if a claim is brought, defending claims for meal and rest period violations are still very expensive, which makes prevention the key to success. I encourage you to consult with your employment attorney on a regular basis to ensure that your business complies with all of the wage and hour laws in California.

Brian E. Koegle is an attorney with the law firm of Poole & Shaffery, LLP in Valencia, a law firm which provides general counsel and litigation services to businesses and management personnel. His column represents his own views, and not necessarily those of The Signal. “It’s the Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association,


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