Meal & Rest Break Waivers: The Subtext.

There is text and there is subtext.  We know that there are job “rules” and then there are job practices.  The rules are the official policies and form the text.  The actual practices are those “implicit” rules, often contradicting the policies. 

You break those implicit rules and you know your job is at risk.  Managers “frown upon” the breaking of the implicit rules although they know they cannot cite those unspoken expectations as cause for discipline.  In the current economic environment, employees are quite aware that their re-employment options are limited.  They tend to “go along” with the violation of the official rules.

The California Supreme Court will soon decide if employers will have more latitude to enforce the “implicit expectation” that employees are to work through their rest breaks and meal breaks if they “choose.”  Of course, the legal issue is not framed this way.  The legal issue assumes the requirement of the rest and meal break will continue.  The legal issue is whether the employer must police and proactively enforce the taking of breaks, even when an employee “voluntarily” would skip the break to continue working.  The motives are varied for skipping breaks:  the meeting of deadlines, the personality of the worker, the importance of the work, the desire to go home early, or to make up for coming in late, or maybe just to please a demanding management.  One motive might be fear of a “subtextual” rule.

The social problem is that some employers will have official rest and meal break policies, but unofficial practices that penalize employees taking those breaks.  The penalties can be reduced opportunity for promotion, poor performance evaluations, and greater susceptibility to layoff. 

Currently, waiver of break times is severely limited.  The current rules allow waiver only if the employee works less than 6 hours a day.  A worker can waive the right to a second meal period in a day if he or she works more than 10 hours, but less than 12.  An “on duty” meal period is permitted only when the employee’s work requires the employee to be ready and available to work if needed during the break.  These situations are rare.  The employee’s waiver of a totally free meal break must be in writing. 

These rules will likely remain in place after the Supreme Court’s decision, but what will likely change is that the Court will not require an employer to require employees to take their breaks.  I base this conclusion on the increasingly conservative economic positions taken by the Court favoring the employer community.  The outcome may very well be decided by philosophical and political outlook of the majority that laws protecting employees unduly interfere with the principles of a “free” economy.  This philosophical position will of course be the unstated “subtext” of the long awaited decision. 

Brinker Restaurant v. Superior Court (08-29-08) S.Ct. Case No S166350. 

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