by Kim Silvers, SPHR-CA

The Brinker Restaurant Corp v Superior Court case regarding the timing and requirements around meal and rest breaks for non-exempt employees has been in the courts for over eight years. We finally have a decision! Bottom line: no one thinks this decision is as “earth moving” as initially thought, but it does allow employers and employees some breathing room.  Here are some highlights and insights.  Our clients have received more specific direction and new policies.

Employers are still required to provide non-exempt employees with timely and uninterrupted 30 minute meal breaks and 10 minute rest breaks.  These breaks are not voluntary for employees to work through or shorten at their will. In essence, this new court decision does not allow an employee to “waive” his/her meal break after 6 hours of work. Any indication that the employer has influenced an employee to delay or work through a meal or rest period will be considered a violation.  In those cases, the one hour premium is due for a missed meal break or rest break (up to 2 hours per workday).

As always, the employee may waive the meal period if he/she works between 5 and 6 hours. And the employee may waive a second meal period if he/she works more than 10 hours (not to exceed 12 hours) and has not waived the first meal period.  These waivers are available on our client HR library.

It is also important to schedule employees for their first meal period before the end of the 5th hour of work (the meal must begin by 4 hours and 59 minutes into the shift).

The Brinker decision outlines  four criteria when a meal period is considered “provided” by the employer. This is important as employers will have to defend and prove that meal breaks were provided based on this definition, which reads as follows:  “The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”

Advice from our employment counsel and the Dept. of Labor Standards Enforcement (aka the DLSE or Labor Commissioner’s office) is that employers should still be diligent in providing and scheduling meal and rest breaks. Having a very strong and clear policy about this is essential.

If the meal break has been provided (as noted above) and the employee chooses to use his/her time to work, then the employer must pay for that time worked.  However, the employer may not be responsible to pay the one hour missed meal period premium as required in the past.  The Brinker decision states: The employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium payment….”   Please note – Our legal counsel is not supportive of allowing employees to make this choice (to work through the meal period) on a regular basis and suggests it is risky to allow it. (Some attorneys we spoke with are totally against allowing this option at all and suggest discipline for any non-exempt employee not taking the full 30 minute meal period as scheduled.)  Proceed with caution.

In addition, there are significant concerns about the overtime that may be created as the result of an employee skipping or shortening a provided meal break.  Remember, the employee must be paid for the time worked during a provided meal break and if that results in overtime for the day, the 1.5x or 2x overtime must be paid as well.  Of course, the employer may discipline the employee for unauthorized overtime because of a missed meal period.

Rest Breaks. The court clarified when rest breaks are to be provided.  Ten minute rest breaks must be permitted for every four hours worked or major fraction thereof.  Their specific example outlines the following:

  • Employees are entitled to 10 minutes of rest for shifts from 3.5 to 6.0 hours in length,
  • A second 10 minutes rest for shifts of more than 6.0 hours to 10 hours in length,
  • A third 10 minute rest for shifts of more than 10 hours and up to 14 hours.
  • No rest period is required if an employee works less than 3.5 hours.


  • Rest periods need not be timed to fall specifically before or after any meal period.
  • Rest breaks should be authorized and permitted and offered near the middle of the four hour period, whenever practicable. 
  • As has been the case for a while, employees may choose to waive their rest breaks, but must be afforded them.


The Court did not speak to allowing employees to combine rest periods  or add them to meal period.  We do not recommend that employers allow this

We expect that we will have more direction on the bandwidth of this case as new lawsuits are filed and more interpretation comes down through case law.  In the meantime, our job is to keep our clients out of court. We will not be blazing trails with open scheduling and volunteer break time for all non-exempt employees.

© 2012 Silvers HR, LLC