November 02, 2011

The Lunch Break Times


Artist Sharon Lockhart reflects on the presence of the individual in the context of industrial labor through film, photography, and printed matter. For Lunch Break (2008), she spent a year at a naval shipbuilding plant in Maine, and the exhibition — now on view — examines the workers’ activities during their time off from production. SFMOMA is also distributing Lockhart’s newspaper, The Lunch Break Times, which relates stories about labor and lunch breaks. Every Wednesday, at NOON, we’re posting one of the articles here.………………………….



Maryellen Herringer

Workers’ rights to lunch breaks are the subject of intense debate in the courts. Thousands of lawsuits have been filed, and decisions are piling up. The Fair Labor Standards Act of 1938, which is the federal law providing protections for workers’ rights, did not include any rules regarding meal breaks. Individual states have been left to enact their own legislation and interpret their own rules. Only 19 states give workers legal rights to meal breaks, which range from 20 to 30 minutes. The other states leave meal breaks to the discretion of individual employers.

One recent case of interest working its way through the California courts was originally filed by a small group of employees of Brinker Restaurant Corp. Brinker operates over 130 restaurants in California, including Chili’s Grill & Bar, Romano’s Macaroni Grill, and Maggiano’s Little Italy. The employees claimed that Brinker failed to provide them required rest and meal periods and also made them take their lunch shortly after they began their shifts (this practice is called “early lunching”). By contrast, Brinker argued that it had complied with the law. The plaintiffs won a major victory when the trial court certified a class of more than 59,000 employees at Brinker’s restaurants. Brinker then appealed the case.

In 2008, in Brinker Restaurant Corp. v. Superior Court, the California Court of Appeals decided that California employers must make rest and meal breaks available to their workers, but that employers cannot be held accountable if workers do not choose to take advantage of their breaks. The appeals court also vacated the trial court’s class certification order and suggested that meal break lawsuits needed to be decided on a case-by-case basis, making class actions very difficult to pursue. The California Supreme Court has agreed to review the Brinker decision. In 2009, it also granted review of Brinkley v. Public Storage, another Court of Appeals decision reaching the same conclusions.

Last October, the California Court of Appeals decided Hernandez v. Chipotle Mexican Grill, again rejecting the idea that employers must ensure that meal breaks are taken. The appeals court stated that it would be impractical and an undue burden to require employers to police whether its employees actually take their meal breaks. The California Supreme Court quickly granted review of that decision, as well. In each case, that means that the decision cannot be relied upon or used as a precedent.

Lawyers for both management and labor are speculating about the meaning of the California Supreme Court’s review of these decisions. The California Division of Labor Standards Enforcement has issued a memorandum that adopts the Brinker standard for the interim period, but it has no effect on the Supreme Court. The Supreme Court may simply want to confirm the conclusions that have been reached, settling the law once and for all. However, it may be signaling that it thinks those decisions are wrong. California employers and workers will have to keep waiting to find out what the deal is with meal breaks in California. In the meantime, the San Francisco Chronicle recently reportedthat the legendary Chez Panisse restaurant in Berkeley feeds its workers at meal breaks the same lovely meals it serves its patrons. Some folks are just luckier than others.

Update: The California Supreme Court has scheduled oral argument on the Brinker case for November 8, 2011. A decision is expected between that date and February 2012. All California employers are closely watching this case.

I work in California. Am I legally entitled to a lunch break?Yes. Under Section 512 of the California Labor and Industrial Welfare Commission Orders, employers must give employees a meal period of no less than 30 minutes when the work period is more than five hours (or more than six hours for employees in the motion picture industry covered by IWC Order 12-2001).

Unless the employer relieves the employee of all duties during the entire meal period and permits her to leave the employer’s premises, the meal period counts as hours worked and is paid for at the employee’s regular pay rate. Just note that the law permits an “on-duty” meal period when the nature of the employee’s work prevents her from being relieved of all duties (for example, a sole worker at an all-night convenience store) and when there is a written agreement between the parties. Whether workers must simply offer such breaks or monitor employees and ensure that breaks are actually taken is the issue in Brinker.


Maryellen Herringer is a San Francisco lawyer and SFMOMA trustee. She audits art history classes at Mills College and goes to the tea shop on her lunch breaks.

Leave a comment

Please tell us what you think. We really love conversation, and we’re happy to entertain dissenting opinions. Just no name-calling, personal attacks, slurs, threats, spam, and the like, please. Those ones we reserve the right to remove.

Sign Up

Join our newsletter for infrequent updates on new posts and Open Space events.
  • Required, will not be published

Dear Visitor,
We regret to inform you that Open Space is no longer active. It was retired at the end of 2021. We sincerely appreciate your support and engagement over the years.

For your reference, we encourage you to read past entries or search the site.

To stay informed about future ventures or updates, please follow us at

Thank you for being a part of our journey!