Well, it looks like Brinker is dead. Or at least in a deep seated coma.
From Shaw Valenza:
Well DLSE just issued a NEW memo in which it rescinds its Brinker memorandum, here. In its new “rescission” memo, the DLSE strongly suggests it will continue to enforce meal period laws such that an employer need not force employees to take meal periods; it simply must offer them.
The Wage Law Blog goes into further detail:
On the issue of meal period timing, the memo observes that the DLSE “has varied in its interpretation of this so-called ‘rolling five’ hour rule in the past, [and] there is no controlling legal authority interpreting California’s meal period regulations to require employers to provide meal periods every five hours.”
Consequently, until a binding appellate opinion interprets the wage orders and Labor Code § 512 to require employers to provide meal periods every five hours, the DLSE “will not interpret California’s meal period provisions in that fashion.” Instead, the DLSE position will be that:
- The first meal period provided by an employer must commence prior to the end of the fifth hour of work, unless otherwise expressly permitted by the applicable wage order; and
- Except as required in Labor Code § 512(a) and Section 11(B) of those wage orders requiring a second meal period, there is no obligation for employers to provide additional meal periods during the course of the workday, including instances in which employees work for a period of more than five hours of work between meal periods.
In other words, we’re not backing it, but don’t change what you’re doing either.