What Does “Provide the Reasonable Opportunity to Take An Off-Duty Meal Period” Really Mean?

In a ground-breaking decision in 2012 the California Supreme Court ruled that while employers must provide employees with off-duty 30 minute meal periods, they need not ensure employees take such meal periods, and need not police meal periods to ensure no work is performed. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. While the decision was a victory for employers, the court left open the question of what it really means to “provide the reasonable opportunity to take an off-duty meal period” and noted that the answer would depend on the industry.

In December the California Court of Appeal published a decision that provides some helpful guidance on the question. The Court considered a case in which a class of concrete mixer drivers sued their employer, alleging that they were not properly provided with off-duty meal periods.  Some class members had entered into on-duty meal period agreements, while others had elected not to do so, or had revoked such agreements.

The Court first recognized that concrete mixer work meets the “nature of the work” requirement for an employer to utilize on-duty meal period agreements, given that the concrete drum must rotate at all times to prevent hardening given the chemical reaction involved, and that the concrete must be poured within 60 to 90 minutes of mixing to ensure structural integrity.

Next, the Court examined whether the employer had properly provided its concrete mixer drivers with a reasonable opportunity to take an off-duty meal period.  The evidence demonstrated that the employer utilized a legally compliant employee handbook with correct information reflecting the availability of and right to a 30-minute off-duty meal period.  Employees acknowledged reviewing and receiving the policy.  Additionally, the employer had posted the applicable wage order, which also advised employees of their right to meal periods.  The Court noted that the evidence demonstrated that any concrete mixer driver who requested an off-duty meal period was granted such meal period, and that any driver without an on-duty meal period agreement in place was provided the requisite one hour premium pay for missed meal periods.  The company’s dispatcher further testified that the employees as a whole generally preferred not to take an off-duty meal period, which they communicated to her on a regular basis.

The Court concluded that the employer’s policies were sufficient and appropriate, but was careful to specifically limit the decision to the ready-mix concrete industry.  In that industry, the ability to take an off-duty meal period depends on the state of the concrete in each concrete mixer driver’s truck, making it impossible to schedule off-duty meal periods in advance.  Consequently, the fact that the employer had lawful policies in place, granted all employee requests for an off-duty meal period, and then relinquished control of the employee for that meal period, satisfied California’s meal period requirement.

Like the California Supreme Court in Brinker, the Court of Appeal in Granite Rock Co. emphasized that there is not a “one size fits all industries” approach to “providing the reasonable opportunity to take an off-duty meal period.”  Nonetheless, the case provides insight into how the question might be decided in future cases.  It also highlights the importance of accurate written meal period policies, which is something employers in all industries can institute immediately.

Driscoll v. Granite Rock Co. (2016) 6 Cal.App.5th 215.