Aug 07 2008
Brinker Madness!
Just an anecdote. I was at a mediation yesterday. Both my client and the mediator asked me about the Brinker case, and both were under the impression it was solid good law.
Does the DLSE, who is apparently trying to help employers, really want to be responsible for the large number of small businesses that will rely on bad information and get stung here?
Clarity first, leniency second (and where appropriate).
i got a question today about the compensability of a meal break when the employee clocks back in at minute 27 or 29 rather than at the full 30.
before Brinker, the Labor Commissioner’s manual included section 45.2.9, called “Premium Is Imposed For Failure to Provide Meal Period In Accordance With Applicable IWC Orders.” and, it included this statement: “if the meal period was for less than thirty minutes, the premium [for a missed meal period] would apply.”
after Brinker, the Labor Commissioner eliminated this section.
so what’s the law? you can’t deduct for any break when it’s only 29 minutes long — or can you? i can’t point to the DLSE manual for that answer anymore.
still, the Labor Commissioner’s opinion letter at http://www.dir.ca.gov/dlse/opinions/1992-01-28.pdf says when an employee shortens a meal break and returns to work “the whole of the meal period must be compensated.”
i don’t think the rule changed — it’s just the Labor Commissioner taking away the clarity.