We have all read the alerts and blog postings indicating that employers are only required to “provide” meal breaks, but need not “ensure” that they are taken. What does that really mean for employers? Do employers still need to pay the meal premium for missed breaks, late breaks, and breaks less than 30 minutes?

California law requires employers to pay one hour of pay at the employee’s regular rate of pay for any missed meal. This is called “premium pay” (formerly known as “penalty pay”). Before the Brinker ruling, premium pay was arguably required in other situations too, such as any meal taken after the end of the 5th hour, any meal taken after a 5-hour period of work under the “rolling 5-hour” theory, and for any meal that was not a full 30 uninterrupted minutes.

Employers that were automatically paying the meal premium for missed breaks, breaks taken at the wrong time, and/or breaks that were not a full 30 minutes may not need to keep doing so. Whether premium pay is owed will turn on the question of why the employee missed the break, took the late break or took too short of a break. If it was not based on work requirements, then the meal premium need not be paid. Why? Because the standard now is that employers need only provide the break, but not ensure it is taken.

For example, if an employee is scheduled for a break at noon, but decides to take a late meal break to coincide with a doctor’s appointment at 3:00 pm, then no meal premium is owed because the employee was provided a break by the end of the 5th hour, but decided not to for non-work reasons.

Some employers have set up automated systems that trigger a meal premium when the first 5 hours are worked without a meal break. Those employers may want to change those systems and save associated costs.

A note of caution. Before an employer stops paying meal premium for missed, late or too short meal breaks, it should have a policy that authorizes and permits a meal break by the end of the 5th hour of a shift, and sets out a procedure to follow if work duties prevent employees from taking a break. Employees should sign off on the policy. Even better, employers may now want to schedule breaks to make sure they have proof that breaks were “provided.”

Here’s how it could work. A legal secretary is prevented from taking a meal break by the end of her 5th hour of work due to a time sensitive court filing. She tells the Office Manager that she can’t take a break until the court filing goes out at 3 pm. The Office Manager approves the late meal and processes the meal premium. Another example: A nurse is unable to take a meal break due to a patient emergency. She fills out a standard “Missed Meal” form, her supervisor approves it, and submits it to payroll to pay the meal premium.

Employers should keep in mind that such a case-by-case approach may not be feasible for employers who do not have processes in place to document when a late meal is due to work versus personal purposes. In such cases, keeping systems automated may still be the best practice even though it may result in paying the meal premium when it isn’t necessarily required.

Stay tuned for more practical advice based on Brinker.