Yet, Greater Flexibility Requires Greater Documentation

The recent California Supreme Court Brinker decision (April 12, 2012) on the standards for providing meal and rest breaks now permits greater flexibility on scheduling, including employer ability to provide workers the option to skip breaks from time-to-time.  However, an employer should take care to institute and maintain written procedures documenting  that any such missed break was the employee’s choice, not from the employer’s direction.

Prior to Brinker,  it was not clear whether employers were obligated to  require an employee to take a meal break or rest period even if that worker  did not want to take the time off.  Brinker clarifies employers do not need to police their employees in this manner. Further, an employer will not incur a penalty if it allows an employee the option of skipping a meal or rest break on occasion.

This greater flexibility requires written policy for management to ensure that any worker choice to forego a break is documented.  For instance, an employer can and should have written procedure that directs any employee opting to skip a meal or a rest period to either request that choice in advance in writing or to promptly confirm that choice afterwards in writing.  An employer can and should also institute a form for an employee to periodically confirm that any and all skipped breaks in a recent period have been at that person’s choice.

Of course, employers should also ensure they pay employees for all time worked including any meal breaks skipped at a worker’s option.

Whether or not an employer chooses to encourage such flexibility is up to the employer.  Once offered however, clear written policy and procedure as above is important.  An attorney skilled in developing workplace policies can and should assist in this process.