CA Supreme Court Should Be Careful in Offering ‘Flexibility’ to Employees to Take Meal Periods

If the Los Angeles Times article is an accurate predictor that the CA Supreme Court is inclined to offer ‘flexibility’ to employees in deciding whether or not to take their meal periods, the Court should be careful to evaluate what such ‘flexibility’ means.  During the hearing on November 8th for the case of Brinker Restaurant Corp. v. Superior Court – – one of multiple class action lawsuits seeking damages for employees for missed meal and rest periods  – – the Court heard oral argument on whether or not the existing requirement under CA wage law for employers to provide thirty minute, unpaid meal periods for nonexempt hourly  employees who work over five to six hours per day equates to a requirement that the employer ensure the meal period is taken.  While the evaluation of how an employer with hundreds or thousands of employees can feasibly ensure that each employee takes their meal every single work day is legitimate, allowing ‘flexibility’ so the employee who ‘enjoys his work’ can choose to skip the meal period runs the risk of nullifying the meal period requirement. 

 Similar to ‘off-the-clock’ or OTC time issues, where hourly employees are ‘encouraged’ by their employers to work without clocking in, and where OTC time with no pay is incurred not because employees choose to not get paid for valid work, but rather because they want to be on the ‘good side’ of supervisors (or simply because they want to keep their job), once employers are allowed to give employees the ‘flexibility’ to skip their meal period, the decision to do so may not be because the employee ‘enjoys his work.’  Instead, once one employee chooses to skip the meal period, and then ten choose to do so, fairly soon the employee who opts to exercise their statutory right to a meal period will be the ‘problem employee’ – – and in this economy, may put their job at risk.