On November 8, 2011, the California Supreme Court finally (after more than two years) heard oral arguments in the much anticipated Brinker vs. Hohnbaum case. The Supreme Court will decide whether employers must force employees to take meal periods or whether employees can voluntarily choose not to take them. The Court has 90 days from this hearing to render its decision. In other words, a decision will be rendered on or before February 6, 2012.
Most witnesses to the hearing report that it appeared that the Court was leaning in the direction of concluding that under existing law, employers had an affirmative duty to make meal periods available to employees, but that employees could choose to work through them instead. Such a decision would favor employers on the main issue in the case.
The term meal period means an unpaid break of at least 30 minutes in which the employee has no work duties. The emphasis is on the “period” and not the “meal.” In fact, it does not matter whether the employee uses the meal period to eat.
The upcoming decision is important not only because it provides additional scheduling flexibility but also because it will make it easier for employers to defend against lawsuits by employees who chose not to take meal periods but later file lawsuits claiming they were not allowed meal periods. In the past, the mere fact that employer was unable to prove that an employee had a meal period each shift in excess of 5 hours made them liable, regardless of whether it was the employee’s choice not to take a meal period.
If the Court rules in favor of employers, i.e., makes the meal period optional, it will be important for employers to document that employees nevertheless have the option to take a meal period without retaliation.