The California Division of Labor Standards Enforcement (“DLSE”) just released a memorandum to its staff announcing that it has adopted the rulings announced in the California Court of Appeal’s decision in Brinker Restaurant Corp. v. Superior Court of San Diego County regarding meal and rest periods. In Brinker (as previously reported here) the court held that California employers must make meal and rest breaks available to their employees, but need not ensure that employees actually take the breaks. Effective immediately, the DLSE will apply the standards outlined in Brinker to wage claims filed with the DLSE. The Brinker court also held that: (1) rest periods need not be scheduled in the middle of the work period if not practical to do so; (2) meal periods need not be provided on a rolling five-hour basis; (3) meal periods are not required to be scheduled in the middle of shifts; and (4) employers are liable for offthe- clock work only if management knew or should have known about the unrecorded work.

In addition to the DLSE and the Brinker Court of Appeal, the federal Southern District Court in Salazar v. Avis Budget Group, Inc. also recently interpreted the Labor Code’s requirement that employers “provide” breaks as meaning that employers must make breaks available, but need not ensure employees take breaks. The clear trend among federal and state courts, and the DLSE, to apply this common sense approach to meal and rest periods provides some long awaited clarity and relief to the employer community.