California Labor &
Employment Law Blog

Oct. 28 2008

New Published Decision on What It Means to “Provide” Meal Periods

Topics: Court Decisions, Wage & Hour Issues

Today California's Second Appellate District, Division Three, issued its decision in Brinkley v. Public Storage and held that California law only requires employers to make meal periods available to employees, not to ensure that the meal periods are actually taken. This newly published decision is good news for California employers, given that Brinker is no longer citable precedent pending review by the California Supreme Court.

In holding that an employer need not ensure that meal breaks are taken, the Brinkley court relied on the reasoning of the recent federal court decisions reaching the same conclusion, including Brown v. Federal Express Corp. and White v. Starbucks. The court held that the employer was entitled to summary adjudication of plaintiff's meal period claim (which was brought as a class action) because there was no evidence that plaintiff or the class members were deprived of the opportunity to takemeal breaks. To the contrary, the evidence showed that the employer had a policy allowing for meal breaks, plaintiff and other class members were aware of the policy, and the employer reprimanded employees for not taking meal breaks. The employer also submitted 21 declarations of class members indicating that they were allowed to take meal breaks at their discretion. Although plaintiff submitted evidence that he and other class members at times missed meal breaks, the court held that this evidence did not support a finding that plaintiff or the class members were denied the opportunity to take meal breaks.

In addition to holding that employers need only provide employees the opportunity to takemeal breaks, the court also held that there is no requirement that mealbreaks be provided within the first five hours of work, finding that "nothing in the applicable statutes or wage orders supports [this] position." (Notably,theDLSEcurrently appears to be taking the contrary positionthat meal periods must be providedwithin the first five hours of work, according to the DLSE's most recent memo on the subject. See our October 27 blog entry regarding the DLSE's memo.)

About CDF

For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

> visit primary site

About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
> Contact   > Full Bio   Call 916.361.0991


Carothers DiSante & Freudenberger LLP © 2017

About CDFWhat We DoContact UsAttorney AdvertisingDisclaimer