Header graphic for print
California Employment Law Commentary on Issues Facing California Employers

Into the Weeds on the Timing of Meal Breaks Under Brinker

Posted in Wage and Hour

Now that we all have read about the Brinker ruling, and breathed our collective sigh of relief, it is time to get into the weeds on some very practical issues impacting California employers.

One such issue is the timing of the meal break. The ruling clearly states that the first meal break must start “no later than the end of an employee’s 5th hour of work.” Sounds pretty clear, but is it? Perhaps not if you are mathematically challenged like me.

If a shift starts at 9:00 am, the end of the 5th hour is 1:59 pm. Why? Because you have to count 9:00 am as the first hour. That means that 10 am is the 2nd hour, 11 am is the 3rd hour, noon is the 4th hour, 1 pm is the 5th hour, and 2 pm is the 6th hour. So the employee’s break must commence no later 2 pm, the start of the employee’s 6th hour.

Under Brinker, “early lunching” is okay. So while the meal break must commence by the end of the 5th hour, it no longer must be taken between the 3rd and 5th hour. That concept was based on the “rolling 5-hour rule” now rejected by the Court. Under the rolling 5-hour rule no work period could be more than 5 hours without a meal break, and the timing of the first meal break dictated the timing of the second meal break. Arising from this rule came the 3rd and 5th hour concept, because a meal break between the 3rd and the 5th hour of an 8 hour shift meant that the employee never worked for more than 5 hours without a meal break. So, while the 3rd to 5th hour rule still may be a helpful standard, it is not required.

For example, a restaurant with servers working 4 pm to midnight can provide them with an early meal break at 5 pm before the start of service, instead of between 7 and 9 pm, right at the busiest time.

More to come on other practical aspects of Brinker. Stay tuned.