April 17, 2012
Meal and rest breaks are a necessary part of a working day. The FLSA does not insist upon an employer providing a break but counts it as compensable overtime, when employees are not completely relieved of all duties during the specified break time of at least 30 minutes. Some employers have paid a heavy price for erroneous practices in providing inadequate and interrupted breaks to their nonexempt employees. Class action suits questioning break period policies and practices have proved very expensive for some employers, like Wal-Mart which incurred $75 million in 2010. Employers are left nervously wondering about each and every detail like making employees leave the premises during a break, and worried about having them ‘on call’ through a pager, phone or other means during a break?
In Hernandez v. Chipotle Mexican Grill , the court took the stand that a class-wide inquiry into the reasons of why some employees did not take the breaks provided to them is too individualized. But the review granted by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court has left employers without guidance and worrying if the onus of ensuring that every employee avails the break rests on them.
Prior to the judgment, employers did have definitive guidance in the following:
- Meal periods and wage laws of their respective states.
- Some states made the break last one hour for factory workers.
- Some states provide employees with the freedom to leave their workplaces during breaks.
- Policies had to specify that an employee is expected to avail the full break and not work during the time unless there is a specific request or emergency.
- A time-keeping system which has no protocol for correcting the records to reflect work during the breaks means big trouble.
- Unauthorized extensions of break time by the employee can attract punitive measures as per the employer’s previously published policy and clear guidelines.
- Short breaks, other than lunch and coffee breaks are compensable under federal law.
Meal, Doodle or Play
In Brinker International Inc., the court has now ruled that workers, once freed of all duty, are at liberty to use the time for whatever purpose they desire. The employer is under no obligation to see that they do not work. This provides employers with scheduling flexibility and removes the threat of meal period penalty. As long as the employer does not expect the worker to perform any duty, they need not ensure that no employee works during breaks.
The court also held that a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift, in the absence of any statutorily permissible waiver. On rest periods, the court said employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length and that rest periods need not be timed to fall specifically before or after any meal period.
Employers may have to revise their break and rest policies in line with the court’s ruling in Brinker. It may help if they trained their nonexempt employees on availing meal and rest breaks and also their managers on compliant practices.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.