California Emphasizes Employees Must Be Free To Leave During Meal Periods
California’s History of On-Site Meal Periods
The Labor Code and Industrial Welfare Commission wage orders do not have any express requirement that employees be free to leave the employer’s premises during a meal period. Instead, the courts and Labor Commissioner have read California’s meal period provisions to include such a requirement.
The California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), is best known for holding that the requirement that employers provide meal periods means that an employee must make them available as required – not that employers ensure that an employee, in fact, takes a meal period once the employer provides the opportunity. Brinker also addressed particular requirements for a bona fide meal period. Among them, the Supreme Court recognized that an employer provides an off-duty meal period as required when the employee “is free to leave the premises.” It held that employers “must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”
For decades, long before Brinker, the Labor Commissioner has taken the enforcement position that employees must be free to leave the premises during meal breaks.
The reasoning stems from the definition of “hours worked” in the Industrial Welfare Commission (IWC) wage orders. They generally define the term as either time in which an employee is “suffered or permitted to work” or “subject to the control of an employer.” Such time must be paid.
The Labor Commissioner has reasoned that an employee who cannot leave the premises during a meal period remains “subject to the control” of an employer during that time and thus must be paid for that time as “hours worked.” The courts approved that interpretation. Further, in Brinker, the California Supreme Court agreed with the Labor Commissioner’s interpretation that the meal period requirement in the wage orders is satisfied if an employee:
- Has at least 30 minutes uninterrupted.
- “Is free to leave the premises.”
- Is relieved of all duty for the entire period.
Importantly, IWC Wage Order Nos. 4 and 5 contain an exception for employees in the “health care industry,” as those wage orders define it. The definition of “hours worked” for those employees is only the federal Fair Labor Standards Act definition of suffered or permitted to work but does not involve "California’s expanded definition, including 'control.'"
Thus, employers do not have to pay those employees for time that it requires they spend on-site during meal periods – nor, most likely, does it owe them premium pay, either, for requiring them to stay on premises.
Employer’s On-Premises Meal Policy Held Unlawful
In Estrada, the employer’s policy required employees to remain at its facility during meal periods. The employees were relieved of all duties for 30-minute meal breaks. The employer paid employees their regular wages for this on-premises meal period time.
Under Labor Code section 226.7(c), the class action lawsuit in Estrada sought one hour of premium pay for each employee for every day that the employer required an on-site meal period.
The employer contended that its policy was lawful as long as it relieved employees of duty and paid wages during their meal periods. The court, however, was “unconvinced.” Relying on Brinker, it determined that employees must be free to leave an employer’s premises during a meal period. The court rejected the employer’s argument that Brinker required only relief from duty during a meal period rather than freedom of movement.
The Estrada court concluded that, because employees were not free to leave the premises, the employer’s “on-premises meal policy was noncompliant, so it was obligated to provide premium pay to these employees.”
No Credit Against Premium Pay Owed
To reduce its premium pay liability, the employer in Estrada argued that it should receive an offset by the amount of wages it paid for on-site meal periods. The court rejected the idea. It held that under Labor Code section 226.7, premium pay is different from wages paid for on-site meal period time. Rather than compensating employees for time worked, meal break premiums were “awarded for the non-economic injuries suffered by [employees] due to deprivation of a compliant meal period.” The court in Estrada further explained: “By requiring premium pay for any violation, no matter how minor, the structure makes clear that employers must provide compliant meal periods whenever such a period is triggered.”
A Word About On-Site Rest Periods
Estrada contained an interesting observation about how California law views on-site rest periods. The employer contended that the court should compare on-site meal periods to on-site rest periods. The court disagreed, holding that Brinker “unequivocally” required that employees be free to leave during meal periods. It also recognized “material differences between rest breaks and meal breaks, namely their length.”
Significantly, referring to the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2017) 2 Cal.5th 257, the Estrada court observed that “our Supreme Court has suggested employers can lawfully require employees to remain on the premises” during rest breaks. Augustus involved an employee required to remain on-call while remaining on premises during a rest break, which the Supreme Court held was a violation. The observation in Estrada further supports a reading of Augustus as not prohibiting an employer from simply requiring employees to remain on premises during rest breaks – as long as they are also not on call. Several federal decisions have read Augustus that way.
Things to Do Now
The Estrada decision leaves no doubt that California employees must be free to leave the employer’s premises during meal periods, except with narrow exceptions. If they are not, an employer faces liability for wages for that time, as well as premium pay for a meal period violation. Employers should make sure that their policies and practices comply.