Legal Question in Employment Law in California

No.

Mr. Kierschbaum is not up on recent legal developments. The California Supreme Court recently ruled that an employer is not obligated to make sure employees take meal breaks, only to assure that the employee is entitled to and given the opportunity to be relieved of all duties in order to take the meal breaks. So a binding agreement not to get meal breaks would be illegal, but an informal agreement that allows the employee to take or not take a meal break is now perfectly legal.

I respectfully disagree with Mr. McCormick. I do not believe employers have been relieved, by the California Supreme Court in the Brinker case, of their obligation to provide meal breaks as is required by law. Agreements to waive the break, in my opinion are still unlawful. The case says employers cannot force employees to take their breaks. I would be very surprised if agreements to waive meal and rest breaks were upheld by the courts.

And I respectfully continue to disagree with Mr. Kirschbaum, although it seems we are more debating semantics than real differences. We both agree that an ongoing agreement not to get breaks would be unenforceable, as I said. No where, however, does the Brinker decision say an employer cannot force an employee to take a meal break. Specifically what the Brinker case says is, "the employer need not ensure that no work is done during an employee�s meal period.� The employer satisfies their obligation under the meal period provision �if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.� Many employers REQUIRE breaks be taken, and nothing in the Brinks decision prevents them from continuing to do so. Therefore I stand by my statement that the employer and employee must at least tacitly if not expressly agree to the employee skipping the meal break. The employee must be allowed to change their mind at any time, and therefore any ongoing agreement would not be enforceable, but the employee not taking a break on an ad hoc basis is an agreement nonetheless and to the extent Mr. Kirshbaum says otherwise I believe he is simply wrong.