In California employers must give workers time off to eat meals at work. The law on meal breaks illuminated by a California Supreme Court’s case Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. Before Brinker, courts were divided over (1) whether an employer must merely make meal breaks available, or (2) whether the employer must actually ensure employees take the breaks. Under the make available standard, the employer merely must make meal breaks available. That is, the employer must relieve the employee of all job duties for the meal break, and then the employer may allow employees to decide for themselves whether to take the break. This make available standard thus allows an employee to choose to skip the break and, for instance, to leave work early instead. If the employer provides a break opportunity to the worker, the employer incurs no liability if the employee then decides to skip or delay the break.

Under the alternative ensure standard, an employer must ensure employees take breaks. That is, an employer must make workers take meal breaks whether they want them or not. Employers are liable for missed meal breaks even when workers choose to skip their breaks because the ensure rule makes breaks mandatory.

One important difference between the make available standard and the ensure standard has to do with ease of proof. The ensure standard can make it easier for plaintiffs to prove employer meal break violations, while the make available standard can make it harder. Here is why. Employers generally require employees to record hours worked by clocking in and clocking out, a process that typically generates centralized and computerized time records. It is simple to use computer records to determine if each employee checked out on time for a full 30-minute meal break. Meal break classes thus are relatively easy to certify under the ensure test: each missed break automatically equals an employer violation. Meal break classes are harder to certify under a make available test because the fact of a missed break does not dictate the conclusion of a violation (and thus employer liability). Rather, under the make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable. If the worker was free to take the break and simply chose to skip or delay it, there is no violation and no employer liability. This make available test thus can make analysis of break violations more complex than under the ensure standard.

Brinker adopted the make available standard and rejected the ensure standard. (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1017, & pp. 1034- 1041 [“we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done”].)

In summary, in California, employers must make breaks available for their employees, but the employer need not ensure employees actually take the meal breaks.