Last year, in Brinkley v. Superior Court, the California Supreme Court decided the important issue of whether employers must make sure that employees take their breaks or simply provide opportunity for break time. The California Supreme Court held that employers do not have to ensure that meal breaks are used by employees. Employers have to make break time available, but they don’t have to monitor employees to make sure they aren’t working during their break time.

The law when it comes to meal breaks

An employee who works for more than five hours must be given an unpaid, off-duty meal break of 30 minutes (at a minimum). The meal break may be unpaid if the employer does the following:

• Relieves the employee of all duties
• Relinquishes control over the employee’s actions
• Allows for an uninterrupted 30-minute break
• Does not do anything to curtail the break in quantity or quality

If the work period is less than six hours, the meal period may be waived if both the employer and employee agree. If an employee works more than 10 hours, however, the employer must allot time for a second meal break of at least 30 minutes. If the employee does not work more than 12 hours and took the first meal break, and the employee and employer agree, the employee may waive the second meal break.

On-duty meal break

Although not recommended without consulting with an experienced labor and employment attorney, employers may authorize an on-duty meal break. For an on-duty meal break to be taken, all of the following elements must be met:

• The type of work does not allow for the employee to be relieved of all responsibilities
• A written agreement must be signed by the employer and employee
• The employer pays employee for the meal break
• The employee may revoke the on-duty break at any time

Where an employer requires an employee to stay on site, the employer must pay the employee for the break.

Meal breaks provide an important respite during the business day for employees. If you feel that you are not being provided meal breaks according to California law, contact a San Diego labor and employment lawyer for a free consultation.