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Carl Kanowsky: Must employees be forced to take lunch?

It's The Law

Posted: April 13, 2012 1:55 a.m.
Updated: April 13, 2012 1:55 a.m.
 


Mary was thrilled with her new job as a teller at the local financial institution, Bank Fees & More. It was an eight-hour-a day job, five days a week, with occasional weekend work, meaning overtime.

Things seemed to be going well on her first day until the time for her lunch break arrived at 1 p.m..

Two of the other tellers who were supposed to be working that day had called in sick. Consequently, there was a line of impatient bank customers waiting to conduct their transactions. Time for her break came, and, sure enough, there were six people in line and only Mary and Bill working as tellers.

Now, Mary was no dummy. She knew that if she didn’t take her lunch break, then she likely would never get one. By the same token, she saw the waiting customers and knew she was new to the job, so maybe she should skip lunch just for today. She hoped doing so would make a good first impression.

So, Mary went to the assistant branch manager, Brenda, and offered to work through lunch to help out so long as she got paid for the extra time.

The question, then, is, how should Brenda respond? Should she thank Mary for her offer, but insist that she take her lunch break and then discipline her if she failed to take the time off? Or can she take advantage of Mary’s suggestion and keep the customers happy by keeping two tellers actively working?

Well, until Thursday, that was an open question. The California Supreme Court addressed that dilemma in its decision in the Brinker case.

Brinker is the name of the corporation that, at one time or another, owned or operated these well-known restaurants: Chili’s Grill & Bar, Maggiano’s Little Italy, Romano’s Macaroni Grill, Corner Bakery Cafe, Cozymel’s Mexican Grill and On the Border Mexican Grill & Cantina. Brinker got sued in a class-action lawsuit by representatives of its thousands of past and present employees over exactly this point.

The Brinker case raised several issues, but the one we will deal with today concerns meal breaks.

The court established one ground rule: “Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”

The warring parties had vastly different interpretations about how that rule is enforced.

“Hohnbaum (the employee representative) contends that an employer has one additional obligation: to ensure that employees do no work during meal periods,” said the court’s opinion. “Brinker (the restaurant chain and employer) ... contends an employer is obligated only to ‘make available’ meal periods, with no responsibility for whether they are taken.”

Simply put, once an employer acknowledges its duty to give its employees the time off for lunch, must the employer force the employee to take the meal break?

The Supreme Court reached the only logical, reasonable conclusion: “We conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”

In other words, the employer must give the employee the legitimate opportunity to take a meal break of at least 30 minutes, but the employer does not have to act like a parent of a 6-year-old and force the employee to take the break.

So, Brenda can agree that Mary can work through her lunch break.

The court described exactly how Brenda should handle such circumstances in the future: “An ‘on-duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.

The written agreement shall state that the employee may, in writing, revoke the agreement at any time. Thus, if employers follow the rules, employees can voluntarily work through lunch.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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