April 2, 2018
The legal right of California employees to take a meal break has kept many lawyers busy over the last few years. Unfortunately, most of the court cases addressing the meal break law focus on what employers did wrong; few offer clear guidance on how to get it right. The recent Court of Appeal decision in Serrano v. Aerotek, however, provides a primer for employers on how to get it right. Even though this case was brought by an employee who was placed by a staffing agency, the court’s conclusions regarding what the staffing agency did correctly would apply to all employers.
Lesson #1: Adopt a Clear Meal Break Policy
The Plaintiff, Norma Serrano, was hired by the Defendant Aerotek, Inc., a staffing agency. One of its clients, Bay Bread, hired Serrano as a temp employee. Both companies gave Serrano their respective employee handbook that included a clear Meal Break policy consistent with CA law. Even though Serrano’s day-to-day activities, including her meal breaks, were overseen by Bay Bread, the court emphasized how Aerotek’s distribution to each employee of its own meal break policy was a fact that helped Aerotek establish it independently met its duty to provide meal periods as required.
Lesson #2: Train New Hires on Meal Breaks
Before Serrano started with Bay Bread, Aerotek did a new hire orientation addressing its meal break policy. This was another fact the court highlighted as helping to establish that Aerotek met its independent duty to legally provide meal periods.
Lesson #3: Put Some Responsibility on the Employee to Speak Up
The court noted Aerotek’s policy and training emphasized to new hires that if something prevented him or her from taking a meal break, he or she should report it to their Aerotek supervisor. The court found Serrano, however, never complained that something was preventing her from taking her meal breaks.
Lesson #4: Have Clear Contract Terms on Employment Policies
Aerotek did not ultimately control Serrano’s schedule or supervision. But it did have a written contract that imposed an obligation on Bay Bread to “comply with applicable federal, state and local laws” in connection with the services provided under the contract. This too was viewed by the court as evidence of Aerotek taking steps to satisfy its duty to provide the legally mandated meal breaks to its employees.
Lesson #5: Don’t Look the Other Way
There was no evidence Aerotek knew or had reason to know Serrano was not taking her meal breaks, but there was evidence that Serrano repeatedly clocked her meal break late (after the end of the fifth hour worked). Serrano argued this should have put Aerotek on notice that she was not being provided legally compliant meal breaks, but the court of appeal held that the mere fact she recorded her meal break late was not sufficient to put Aerotek on notice that she was being prevented from taking a meal break earlier. Relying on the CA Supreme Court decision in Brinker, the court of appeal noted an employee need only provide the opportunity to take a meal break but need not police its employees to ensure they do so. But you should not turn a blind eye if you notice an employee is not following your policy. If you have a meal break policy, train your employees to take breaks. If you notice some employees are not taking breaks per your policy, ask them why not. You may not have to police your employees to ensure they take meal breaks, but it is a red flag if you have an employee who is repeatedly unable or unwilling to take a timely meal break. You may ultimately prevail, like Aerotek did, in proving the employee took all of his or her meal breaks, but you will never be able to recoup the cost and time invested to prove you were right.