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Tiffanny Brosnan, partner at Snell & Wilmer LLP  

Click Here for Tiffanny Brosnan's Bio

Wednesday, February 04, 2009
5 New Year’s resolutions for employers
Restaurant employees and meal periods
Do restaurants and other employers routinely violate California laws regarding employee meal periods? Tipped or commissioned employees, such as servers and salespeople, frequently choose to skip their meal periods. These employees don’t want to walk away from potential tips or commissions to take a 30-minute break. Is this against the law?

Some courts say yes while others say no. The confusion lies in the definition of the word “provide.”  

California Labor Code Section 512 states that in certain situations, employers must “provide” employees with a 30-minute meal period. Plaintiffs’ lawyers (who file new class-action lawsuits on this topic every day) argue that this means employers must ensure that the meal period is taken. Essentially the employer must force the employee to stop working and take a full 30 minutes off. Employers’ lawyers go with the Webster’s Dictionary definition of “provide” which is “to supply or make available.”  

The California Supreme Court is reviewing a key case on this subject with a restaurant company as the defendant, but it could be a year before the issue is resolved. In the meantime, what should employers do?
 
At a minimum a company should:

•    Audit policies on meal periods to make sure that they accurately reflect the law.

•    Schedule employees so that it is possible for them to take their 30-minute meal period. Arrange for someone to cover for an employee on break. For sales employees whose appointments are booked by the employer, schedule an open time in the middle of the shift for a meal period.

•    Do nothing to impede, discourage or dissuade employees from taking their available meal periods.