While the focus of post-Brinker discussion has been meal breaks, let’s not forget that the Court also clarified rules regarding rest breaks. Again, we have math. The wage orders provide that employers must “authorize and permit” employees to take rest periods “at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” The Court found that “major fraction thereof” means more than half, and actually gave some details that should be instructive to employers. Employees are entitled to:
• One 10 minute break for shifts between 3.5 and 6 hours.
• Two 10 minute breaks for shifts of more than 6 hours and up to 10 hours.
• Three 10 minute breaks for shifts of more than 10 hours and up to 14 hours.
The Court also held that while rest breaks should generally be taken before and after a meal break, that sequence is not required if not practical. This is excellent news for the hospitality industry. For example, if a restaurant server works 5 pm to 1 am, and takes an early meal break at 6 pm, it is now okay to have the employee take 2 rest breaks thereafter.
The next logical question is whether employees can now combine meal and/or rest breaks. That question was not addressed by the Court, however, the Court did indicate that the best practice is still to have rest breaks and meal breaks in the middle of each work period. So it seems that combining breaks is still a somewhat risky endeavor. Plus, it can be a logistical challenge if employees still clock out for unpaid meal breaks, but don’t for paid rest breaks.
What is the take-away for employers? First, make sure that rest break policies either include the language “every 4 hours or major fraction thereof” or include the specific list of how many breaks an employee is entitled to per hour worked as listed above. Second, confirm that managers understand the number of breaks that must be provided, and don’t engage in conduct that undermines or prevents employees from taking breaks. Third, make sure meal and rest break policies include a sentence about what the employee should do if unable to take breaks for work related reasons.
Don't forget to clarify best practices with regard to rest breaks going forward.