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Legal Counsel
Legal Counsel, Lawyer
Category: California Employment Law
Satisfied Customers: 103
Experience:  California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
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I heard there is new judgement from California Superme Court,

Customer Question

I heard there is new judgement from California Superme Court, that employer does not need to force employee to take a lunch break any more. As an employer, my problem is my employees do not want to take a break and they want to work during lunch then go home half hour early. (Actually, I do not watch them too close during work, they can take break without signing out), now can I do this way: issue paper work to them and ask them to take a lunch break, but if they still want to keep working, we pay them???
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Legal Counsel replied 2 years ago.

Legal Counsel : The California Supreme Court recently decided in the case of Brinker v Superior Court that an employer is only required to offer the meal period but is not required to ensure that the employee takes the meal period. Thus, although the court said that as an employer you are required to relieve the employee of all duties during the meal period, you are NOT required to make sure that they take their meal period. But, the Court's decision did not say that you are required to let them work through their meal period if they want to. Thus, although the court's decision states that you are not REQUIRED to ensure they take the meal break, you are allowed to require them to take their meal break. The Court's decision does not prohibit you from requiring employees to take their meal breaks if you choose to require them to take those meal breaks. You may tell them that they have to take their meal period and if they don't, they are violating company rules. Also, if they work through their meal period and it puts them at working more than 8 hours in one day, then you may be required to pay them overtime, and I assume you don't want that to happen. As long as you offer them their meal period you are complying with the law. If you don't mind them working through their meal period and paying them for that time, that is up to you. But it sounds like you want them to take their meal break and not be required to pay them for that time. You can set the rules as to when they take their meal periods as long as it is given within the 5 hours of their work period. The meal period is off the clock and you are not required to pay them for the meal period. If they work during the meal period so that they can get paid for that time, I assume you consider it a financial burden on you, and you are not required to allow them to keep working so that you have to pay them.
Legal Counsel : I know this sounds confusing, but the botXXXXX XXXXXne is that If they to work through their meal period, they are allowed to do so, as long as they agree to it in writing, and the employer does not pressure or encourage them to work through the meal period. As long as you allow the employee relief from work during their meal period and you "relinquish control over what they do during that period," work by a relieved employee during a meal break does not place you in violation of your obligation to provide the meal period and does not create liability against you for "premium" pay under Wage Order No. 5, subdiv. 11(B) and Labor Code section 226.7(b). Proof that you as the employer have knowledge of employees working through meal periods will not alone subject you to liability for premium pay. Employees cannot manipulate the flexibility granted them by you to use their breaks as they see fit to generate liability against you.
Legal Counsel : On the other hand, the Court said that an "employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks." Whether you can have them work through their meal periods depends completely on the circumstances. As long as they know they are allowed a meal period and you are not " pressuring" them to work through those meal periods and get paid, then you may do so. But the most important thing is that the employee has been offered a meal period during which you "relinquish all control" over what they do during that meal period.
Legal Counsel : I sincerely XXXXX XXXXX have answered your question to your satisfaction. I tried to give you a comprehensive but not too complicated discussion of the California Supreme Court's decision in Brinker, while putting it in perspective based on your particular situation. You don't want employees "manipulating" the meal breaks to put you at risk of paying overtime, but you also need to be sure you offer them that complete freedom during a meal break.
Legal Counsel : I seek to provide you with only excellent service. If you beleive I have answered your question, please "Accept" my answer and rate my service. Thank you for the opportunity to provide you with my services.
Legal Counsel, Lawyer
Satisfied Customers: 103
Experience: California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
Legal Counsel and other California Employment Law Specialists are ready to help you
Expert:  Legal Counsel replied 2 years ago.
Hello again. Thank you so much for accepting my answer and especially for the bonus! I greatly appreciate it.

If you have any further questions or concerns, please do not hesitate to ask for me directly, by stating "this is for "Legal Counsel" and I will be able to answer you directly. It is a pleasure to assist you. Thank you for allowing me to be of service. Sincerely, Legal Counsel

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