In May, another decision by a California Court of Appeals reaffirmed that California law requires employers to provide certain breaks but does not require employers to ensure that employees actually take them. In Flores v. Lamps Plus, Inc., 195 Cal. App. 4th 389 (Cal. App. 2d Dist. 2011), a group of former employees sought to certify a class action alleging, among other things, that they had been denied meal and rest breaks required by law. They argued that their claims had sufficient “commonality” for class certification because California law requires employers to ensure that all employees take the required meal and rest breaks and that, therefore, each plaintiff need prove only that he or she had missed a break and not that the employer had interfered with the break. The trial court disagreed and denied class certification, and the Court of Appeals affirmed.

The Court of Appeals noted that Wage Order 7-2001 requires employers: (a) to “provide” employees with a 30-minute meal break when they work more than a five-hour shift and a second 30-minute meal break when they work more than a 10-hour shift; and (b) to ““authorize and permit” employees to take a 10-minute rest break for every four hours worked. The court also noted that Labor Code section 226.7 states that no employer “shall require” any employee to work during any meal or rest period mandated by the Wage Order. Taken together, the court held, this language makes clear that employers are required to allow employees to take the necessary breaks but are not required to ensure that the employees actually take them.

In reaching this conclusion, the court noted that requiring employers to ensure that employees take meal and rest breaks would be “utterly impractical” and “place an undue burden on employers,” and would “create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws.”  

This holding continues a long line of cases reaching the same conclusion, including several that are now pending before the California Supreme Court. Final word on this subject will eventually come from that court.