Businesses don’t have to force their workers to take lunch breaks – they need only make them available to avoid penalties under California labor law.

But they still face the threat of class-action lawsuits if they have a policy of promoting only the employees who work through their lunch breaks.

The California Supreme Court handed down those edicts today in Brinker Restaurant Corp. et al. v. Superior Court of San Diego, a widely watched case that left businesses hyper-vigilant in enforcing meal breaks. Before the ruling, businesses braced for the worst-case scenario of both providing a meal break and verifying that the employee took it.

That led to situations that employees themselves found irritating. Most commonly, restaurant servers were often forced to take a break while diners were still mid-meal, which could hurt tips.

“I would try to explain it to the people with me at my table – don’t blame it on the server, and let’s still leave her a good tip,” said Kathryn M. Eppright, an employment law attorney with Andre, Morris & Buttery in San Luis Obispo.

The Brinker ruling gives workers and their employers greater flexibility.

“The most concrete example is for my assistant to say, ‘I’m going to skip lunch and leave early because I want to go see my kid play basketball.’ I can now say that’s fine and not owe a penalty,” said Jon Light of Camarillo-based LightGabler .

California employers now need to have a policy in place that lets workers know they are free for their meal breaks. But that policy has to be communicated at all levels, employment attorneys said. Under the Brinker case, workers could still bring a class-action suit if they can prove that there was a policy, even if unwritten, of discriminating against employees who actually take their meal breaks. The best example is a shift supervisor who tells employees they must work through a lunch break if they hope to get promoted, even if official company policy says otherwise.

“Mere lip service that an employee is being relieved of their responsibilities will not suffice,” Michael S. Fauver of Santa Barbara-based Buynak & Fauver told the Business Times in an email.

The Brinker case did not strictly resolve whether meal breaks must be taken within the first five hours of a shift. But they did hint that as long as the employer offers the break within the first five hours, it’s the worker’s decision whether to take it.

“It wasn’t as clear as it could have been on that, but it appears that if the employee voluntary delays the break, there’s no penalty, but if the employer forces the delay, the penalty kicks in,” Light said.
So if an employee wants to skip lunch and leave early, have them send an email request. “I would do it in writing, just to make sure there’s no ambiguity about who asked for it. That’s the practical tip of the day,” Light said.