In Brinker Restaurant Corp. v. Superior Court, the California Court of Appeals held that while employers cannot impede, discourage or dissuade employees from taking meal and rest breaks, employers need only provide employees with an opportunity to take their break, and are not required to ensure they are in-fact taken. Unfortunately the appellate court’s decision has been placed on hold, because the California Supreme Court has granted review of the case. Until the Supreme Court rules to overturn, or uphold, the decision in Brinker, the Appellate Court decision has no effect. All California employers should consequently continue not only to provide the required meal and rest breaks, but ensure their employees are in fact taking the required meal and rest breaks.

At present, if a California employer fails to provide either the required meal break, or rest break, California Labor Code §226.7(b) provides that the employer must pay the employee one hour’s pay at the employee’s regular rate of pay for each workday the employee was not provided a meal period or rest break in compliance with section 512 of the Labor Code, or any applicable Industrial Welfare Commission wage order.

Claims for unpaid wages are generally covered by a three-year statute of limitations (and permit restitution under a four-year statute of limitations), while claims for penalties are covered by a one-year statute of limitations. On April 16, 2007 in Murphy v. Kenneth Cole Productions, the California Supreme Court unanimously decided that the payments to employees for missed meal and rest periods are wages, not penalties. Therefore, claims for missed meal and rest breaks under the Labor Code are governed by a three-year statute of limitations.