Pending decisions from the California Supreme Court in Brinker Restaurant Corp. v. Superior Court of San Diego County and Brinkley v. Public Storage, Inc., the Division of Labor Standards Enforcement must still adjudicate Berman hearings concerning meal period claims. Consequently, the DLSE has adopted an “HQ Memorandum” presumably to guide interim agency decisions. The Memo makes clear that “employers are not obligated to ensure that their employees take meal periods.” But it also imposes the so-called “5 Hour Rule” requirement: “The first meal period provided by an employer must commence prior to the end of the fifth hour of work.” It seems to me that these rules are in conflict. If an employer is not obligated to “force” an employee to take a meal period, then it should not be required to “force” a meal period under specific time constraints. Recently, we have been able to obtain agency decisions using this argument. If you would like a copy of the decisions or to discuss strategy, send me an email.
