Whatever the size of your business, employee management is one of many responsibilities of all employers. Amongst the many challenging aspects of employee management, managing employee meal periods may sound too simple to pose a serious risk of employment litigation. However, it is also one of the easiest risks to minimize – as soon as you understand the risk and how to minimize it.

Generally speaking, California’s wage and hour laws (found both in the California Labor Code as well as the Industrial Wage Orders) require an employer to provide an uninterrupted meal period to its non-exempt employees of not less than thirty minutes if the non-exempt employee works more than five hours in a day (unless they work six or fewer hours total and elect in writing to waive that meal period). For non-exempt employees working more than six hours in a day, the meal period must be provided and taken by the non-exempt employee prior to the fifth hour of work. The key to minimizing the risk to the employer is to understand your obligations as an employer to provide meal periods in accordance with the law.

Imagine you have employed Emma as a full-time receptionist at your busy spa for $15 per hour since 2014. Emma’s day begins at 10:00 a.m. and ends at 5:00 p.m. Emma is a very responsible employee who follows all company policies. She typically takes thirty-minute meal periods in the break room, eating lunch and watching TV. She is the only receptionist on the days she works. As the receptionist, Emma schedules appointments, as well as checks and responds to voicemails and emails. She also is responsible for checking the inventory in the back room and helping the masseuses prepare spa rooms. In order to attend to all her job functions, Emma often answers appointment calls during her lunch from the break room. Sometimes there are no calls, but sometimes she fields two to three appointment calls during her thirty minute meal periods.

Last month, you terminated Emma. Emma feels betrayed by your decision, and speaks with an attorney. Emma then sues you to collect wages for her missed meal periods. She claims that she worked through her meal periods each day that she worked at the spa. Emma, with the help of her attorney, claims she worked 5 days a week and 50 weeks a year for the last three years. Under California law if an employer fails to provide an “uninterrupted” meal period, the employer must pay one hour of the employee’s regular rate of pay for each workday that the meal period is not provided. The statute of limitations for missed meal periods typically, and for the purpose of this scenario, is three years. Therefore, Emma’s total claim is $11,250.00 (5 days x 50 weeks x 3 years x $15 per hour), plus attorney’s fees and costs. As a small business owner, Emma’s lawsuit against your company can be devastating.

You never required or even asked Emma to take appointment calls during lunch. In fact, thanks to free legal forms you found online, you had her sign a company policy that obligated her to take uninterrupted meal periods. Do you now have to pay her $11,250.00?

The answer may depend on whether you knew or should have known that Emma was working through her meal periods. To prove that she was working during her meal periods, Emma will likely gather evidence of the call logs, appointment books, and the emails notifying you of new appointments and cancellations. She also may testify that the break room is right next to your office, and you were able to hear her telephone conversations with clients. This evidence would suggest that you knew, or should have known, that Emma was working during her meal periods.

To determine whether you owe $11,250.00, plus attorney’s fees and costs to Emma, we must then study legal cases that have interpreted and expanded California employment laws.

The interpretation of what it means to relieve an employee of all duties has created much confusion and allowed for conflicting arguments among employers and employment attorneys. In 2012, the California Supreme Court shed some light on this issue in its decision in Brinker Restaurant Corp. v. Superior Court (“Brinker”). According to the ruling in Brinker, an employer satisfies its legal obligation under the law when it: (1) relieves its employees of all duties; (2) relinquishes control over their activities; (3) permits them a reasonable opportunity to take an uninterrupted 30-minute period; and (4) does not impede or discourage them from doing so. The Brinker case decided that an “employer is not obligated to police meal breaks and ensure that no work thereafter is performed.”

Although the Brinker case seems to provide a clear ruling that employers do not need to police their employees’ meal periods, the practical result is that employers should ensure that employees take uninterrupted meal periods to prevent costly and time-consuming litigation over whether the employer is in compliance.

You will have to defend yourself from at least the following questions: Did you permit Emma a reasonable opportunity to take uninterrupted periods? Was she too busy as the sole receptionist for the spa that she felt the need to take appointment calls even during her meal periods? Were you taking advantage of Emma’s sense of responsibility in answering those calls? Did you impede Emma from taking uninterrupted periods? Did you know that she was working during her meal periods? If so, why did you fail to correct her behavior when you knew that she was violating your company policy?

You will be required to hire an attorney to defend your spa, because your company cannot appear in court on its own. Your attorney will need to conduct legal research, analyze the facts of your situation, collect and evaluate the evidence and Emma’s claims. Using the decision set forth in the Brinker case, your attorney will argue that you were not required to police Emma’s meal periods, or required to ensure that Emma was not performing any work during her meal periods. Although this argument may ultimately be the winning argument – and it is possible you will defeat Emma’s claims – your election not to police Emma’s meal periods is problematic.

By the time you settle this case with Emma, you will likely have incurred legal fees from your attorney in excess of Emma’s demand of $11,250.00. In addition, if you choose to settle the claim without going to trial, you will pay Emma some amount of money, including a settlement payment and possibly Emma’s legal fees. If you decide to fight for what you believe is right, and you allow Emma’s case to proceed to trial, you are likely to incur legal fees greatly exceeding the actual value of her claim – easily more than $100,000.00. In reality, preventing a wage dispute for missed meal periods takes more than simply instructing or allowing employees to take their meal periods. Employers must police meal periods and ensure that no work is being performed during meal periods in order to avoid a costly lawsuit.

Here are some practical tips to avoid a lawsuit based on missed or interrupted meal periods:

• Educate your employees as to the importance of taking a proper meal period, as well as any rest periods to which the employee is entitled.
• Do not create an environment where your employees feel pressure, or an obligation to work during meal periods.
• If you know your employees are periodically working during their meal periods:
• – Pay the meal period penalty. Ensure that this penalty pay is reflected appropriately on the employee’s paycheck;
• – Warn the employee (both verbally and in writing) that they may not work during their meal period;
• – Take appropriate disciplinary actions including termination of employment if the employee persists in violating your meal period policy.
• If you suspect that your employees are working during their meal periods, you must investigate and act accordingly.

If you would like further guidance on best practices regarding California’s laws about meal and rest periods, or complying with other California employment laws, please contact us at Boren, Osher & Luftman, LLP.