Staffing and employment law can be tricky — especially for companies that utilize staffing agencies for temporary employee services. Our General Counsel and Managing Director of Human Resources, Francesca Brooks, breaks down the Serrano v. Aerotek decision and what it means for California employers.
About the Case
In Serrano v. Aerotek, Norma Serrano brought a class action against the staffing agency Aerotek, which placed her as a temporary employee with one of its clients. According to Serrano, she wasn’t given the meal breaks specified by Section 512 of the California Labor Code. But the Court held that a staffing agency, when it meets certain conditions, is not required to police breaks for employees placed with other employers.
This is in line with the 2012 decision in Brinker Restaurant Corp. v. Superior Court (Cal. 2018), which found that while an employer must provide proper, compliant meal breaks, it’s not required to enforce whether employees refrain from working during this time. And failure to review time sheets or investigate a missed meal break does not place the agency in legal violation.
The Court of Appeal found that in meeting its obligation to provide meal breaks to temporary employees, “nothing more” is demanded of a staffing agency than:
a.) requiring the client to comply with all applicable laws
b.) providing and training the temporary employee on a written compliant meal period policy. The policy should require the employee to notify the staffing agency if they believe they’re being prevented from taking meal breaks.
Key takeaway: As a California employer, your responsibility to ensure employees are provided meal and rest breaks is not satisfied because you contract with a staffing agency. You are still required to meet certain important obligations.
What Serrano Means for Employer Consumers of Temporary Staffing Services
If you use staffing agencies, be sure your services agreements and contracts are properly drafted — addressing the obligations of both parties and maintain compliant wage and hour practices.
Remember, the burden is always on the employer to notify employees of its meal period policy and direct them to comply. Establishing these best practices can help your company get it right:
- Have written, compliant meal and rest break policies in their employee handbooks.
- Establish protocols for employees to report violations or difficulties with taking meal breaks.
- Provide training to all employees regarding these policies and protocols.
- Discuss and clearly define roles and responsibilities to protect your company from liability.