California law mandates that an employer "may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes ..." (Cal. Labor Code section 512Many California employees, however, work through their lunch, or do not take an entire 30 minutes for their meal break. If the reason that these employees do not take a full, uninterrupted meal break is based on the employee's own choice -- rather than an express or implied message from their boss -- does the employer still violate Section 512 of the California Labor Code?

Brinker v. Superior Court (Fourth District Court of Appeal) provided substantial guidance that had otherwise been sorely lacking for California employers on this issue. And at least for those employers (if not most of their current employees), the answer is welcome news.
Many millions (if not billions) of dollars have been spent by employers in defense costs, settlements, judgments and arbitration awards based on the assumption that Section 512 requires an employee to take his or her "mandatory" 30-minute meal break, even when the employee voluntarily chose not to do so.

Class action plaintiffs are particularly fond of this interpretation because California law also requires that employers supply an additional hour of pay to every employee who was not "provided" with his or her 30-minute meal break. The reasons why an employee may not have taken a meal break under this interpretation are irrelevant. The only issue is whether an employer can prove that its employees actually took a full 30-minute meal break for every five hours of work. If not, it's a simple question of adding up the number of employees (going back four years from the date the lawsuit was filed), and multiplying by the affected employee's regular rates of pay.

But the result of decisions that agreed with this interpretation had the net effect of making an employer police meal breaks regardless of the employee's own desires, writing up or even terminating employees who failed for whatever reason to actually take an uninterrupted 30 minute lunch. Not surprisingly, employers and (arguably) most employees were rather unhappy with such an interpretation.

Dictionary.com's first definition of the word "provide" is to "make available." This definition was essentially incorporated by a federal district court judge in Northern California, who in 2007 opined that the requirement upon California employers to provide meal breaks did not impose an obligation to ensure that employees take meal breaks. Rather, "the employee must show that he was forced to forgo his meal breaks, as opposed to merely showing that he did not take them, regardless of the reason."

This opinion was not binding in California state courts, which is why the more recent decision in Brinker v. Superior Court is much more significant. The court concluded in Brinker, among other things, that "while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken ... "

One of the biggest issues in any potential class action is whether each of the individual claims among the "class" is sufficiently common that they predominate over any potential differences among those claims. If the decision in Brinker holds, it will become much more difficult for plaintiff employees to even assert class action claims against their employers based on the alleged failure to provide a meal or rest break. Even if a representative plaintiff can prove that a large number of employees did not take these breaks in a given period, it must also show that the reasons those breaks were not taken are the same.

Perhaps evidence can be established to show that an employer had a policy of "impeding, discouraging or dissuading" employees from taking breaks, but an employer can now fight back with evidence reflecting highly individualized reasons why its employees may have chosen, of their own volition, to work through lunch or come back a little early. It is thus far more likely now -- as was the case in Brinker -- that a request to certify a class based on missed meal (and rest) break claims will be denied.

The court only recently issued its opinion in Brinker, and the period by which the plaintiff in that case may appeal the ruling has yet to run. Thus, a cautious employer would still be wise to ensure that all employees continue to actually take their meal and rest breaks. But the danger in allowing an employee to choose not to is, at least for now, significantly reduced.

Gardenswartz is a partner with the San Diego law firm of Solomon Ward Seidenwurm & Smith. His practice includes employment law, business litigation and corporate and business law.