The ongoing court battles over who is responsible for ensuring an employee takes his/her meal break within the required time continues to rage on in California.  In our last newsletter we told you about a significant decision (Hernandez v. Chipotle Mexican Grill) that once again let the employer off the hook for directing employees to take their meal break.  Since then, the Chipotle decision has been appealed to the CA Supreme Court and the decision has been vacated – or set aside and cannot be used in defense or reference to any other cases. 

These cases continue to support the employer’s position that the employee should be allowed to determine if and when he/she wants to take a meal break – or return early from a meal break.  However, none of the cases that favor the employer are able to be used; all are on appeal.  So, as your HR consultants we strongly advise you to ensure that non-exempt employees who work more than 5 hours/day are taking meal breaks before the fifth hour of work begins (4 hours and 59 minutes) and that the meal break be at least 30 minutes long.  Meal breaks may be waived if the employee completes the work day in 6 or fewer hours and agrees to waive the meal break.

A recent California Court of Appeal decision (United Parcel Service, Inc. v. Superior Court (Allen)) confirmed that there may be up to two additional hours paid each day to a non-exempt employee when not provided meal or rest breaks. Employees in this case may recover up to two additional hours of pay on a single work day for meal period and rest period violations – one for failure to provide a meal period and another for failure to provide a rest period.

 There is much less consternation about paid rest breaks for non-exempt employees.  We encourage employers to continue to provide rest breaks and have employees denote that all rest breaks were offered and taken in the pay period on the time records.  However, if an employee is provided the time to take the rest break and chooses not to take it or cut it short the Labor Commissioner will not be as adamant about employer penalties, contrary to missed meal periods.