By Kim Silvers, SPHR-CA

 Good news for California employers last week… A California Court of Appeal determined in Hernandez v. Chipotle Mexican Grill that the employer must only provide meal periods for non-exempt employees, rather than ensure they are taken.  This is another important decision that allows CA employers and employees the flexibility to take a meal break when and if desired by the employee.  But don’t change your meal period enforcement quite yet!

Most employers are aware that there are two critical cases before the CA Supreme Court that will give the most enforceable direction regarding the meal period requirements.  These cases (Brinker Restaurant  v. Superior Court and Brinkley v. Public Storage) have been in review by the CA Supreme Court for over two years.  We’re hoping for a decision very soon.  To see our earlier article and direction about these cases at click here.

In the meantime, we strongly urge our clients to continue to require/enforce employees to  begin and record  their 30 minute meal break beginning before the 5th hour of work.  Currently, non-exempt employees who work more than 5 hours in a day must be given a 30 minute meal break unless the employee  will  complete the workday in 6 hours.  In that case, the employee may agree to waive the meal period.  Missed or late meal periods result in the employer owing the employee an additional one hour of pay for each day the meal period is not given in accordance with the law.  See your Industrial Wage Order sections 10 and 11 for the specific requirements.

As we’ve said before:  Although this decision gives employers more flexibility in allowing non-exempt employees to “eat at their desk” or work through lunch, we’re not ready to bring out the party hats. We don’t believe employers should change their actions toward ensuring meal and rest breaks are taken.  We still believe it is important to give non-exempt/hourly employees notice that meal and rest breaks are “authorized and permitted” until the CA Supreme Court has spoken.

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