WAGE HOUR UPDATE:
What Every Business Owner
Must Know About Meal and
Rest Period Compliance
In the past 3 years, California
employers have paid out hundreds of
millions in settlement of class action
cases involving non compliant
employee meal and rest periods.
Last year, the stakes were
quadrupled by the California Supreme
Court in a case involving high end
retailer Kenneth Cole. The high court
ruled that employers who do not
comply with these rules must pay one
additional hour of pay for each
violation, going back four years. Not
surprisingly, in the wake of the high
court ruling, there has been a
tremendous increase in the number of
class action cases filed. With so
much at stake, here's a rundown of
what you need to know to be sure
your business is in compliance.
Meal Periods
- In California, an employer must
provide an uninterrupted 30-minute
meal break to every employee who
works a period of more than five (5)
hours. The meal period may be paid
or unpaid.
- If the employee's total shift is not
more than six (6) hours and the
employee agrees in writing to waive
the meal period, this requirement
may be waived.
- The meal period must start before
the end of the fifth hour of work. For
example, if an employee's 8? hour
shift begins at 8:00 a.m. and ends at
4:30 p.m., the Company must ensure
that the employee starts a thirty
(30)-minute meal period no later than
1:00 p.m. If the meal period comes
too early in the shift, a second meal
period may be necessary. Employees
taking an earlier meal period must
either take a second meal period
within five (5) hours after completing
the first one, or agree with their
supervisor to waive the second meal
period by completing and signing a
meal period waiver form.
If an employee works more than ten
(10) hours, the employee must be
provided a second 30 minute meal
break. However, where the
employee's total shift is not more
than twelve (12) hours and the
employee agrees in writing to waive
the second meal period, then the
second meal period need not be
provided.
According to the State Labor
Commissioner, there are several ways
that a meal period violation can occur
even where the employee has had a
meal break.
Interrupted: The entire meal period
must be duty free. Therefore, if an
employee is interrupted during the
meal period (i.e., asked to perform a
work task or answer questions), a
violation occurs and the employee
must be given an additional 30
uninterrupted minutes.
Not a full 30 minutes: A violation
will occur if the meal period is not a
full thirty (30) minutes.
Late/Early: The meal period must
be taken between the 3rd and 5th
hour of work. If the meal period is
taken after the 5th hour of work, a
violation has occurred because the
meal break was too late in the shift.
If taken too early in the day, and the
employee works five (5) hours
thereafter, the employee would be
entitled to yet another meal period.
Not able to leave: Employees must
be free to leave the premises for their
meal periods. If they are required to
stay on the premises, it is not
considered a duty-free meal period
and must be paid.
In addition, the following rules apply
regarding meal periods:
Cannot be Skipped or Waived:
Unless a valid written waiver is in
place, meal periods may not be
skipped or waived by an employee,
regardless of the inconvenience to
the employee or the business.
Excuses of "it was too busy" or "the
employee did not want to take a meal
break" are not valid and should not
be tolerated.
Cannot Combine Meal/Rest Periods or Forego the Meal to Leave Early:
Employers may not combine rest
periods and meal periods to give a
longer meal break, even if the
employee wants to do so. Nor, are
employees allowed to leave early in
lieu of taking a rest or meal break.
The Employer Must Ensure the Employee Received the Meal Period:
California law requires an employer to
"provide" the meal break. Presently,
there are no reported State court
decisions interpreting how the
employer satisfies this legal
obligation. Must an employer ensure
that each and every employee
actually took the daily meal break?
Or, is it enough to merely make the
meal period available. Until that
issue is unequivocally resolved, it is
safer if managers schedule the meal
period, rather than leave it up to the
employees.
Rest Periods
- California law requires that
employees who works more than
three and one-half (3?) hours must
be "authorized" and "permitted" to
take a paid ten (10) minute rest
period near the middle of each four
(4) hour work period or major
fraction. For example, if an
employee's 8? hour shift begins at
8:00 a.m. and ends at 4:30 p.m., the
employee should take the first ten
(10) minute rest break at
approximately 10:00 a.m. and the
second ten (10) minute rest break at
approximately 2:30 p.m.
- Unlike the meal period
requirement, employees are
permitted to skip or waive a rest
period(s), so long as they were
indeed "authorized" and "permitted"
to take the rest break, and were not
encouraged by management to skip
the break.
- An employer may not add bits and
pieces of employee break time
together to reach the 10-minute
requirement. Rather, the employee
must be given 10 consecutive
minutes and is entitled to a full 10
minutes for the actual rest period. As
such, if it takes an employee 5
minutes to walk to and from a
location where they are permitted to
take a rest break, then the rest
period needs to be 15 minutes, to
ensure 10 full minutes of actual rest.
- According to the California Labor
Commissioner, allowing employees to
use toilet facilities during working
hours does not satisfy the employer's
obligation to provide rest periods.
However, an employee who chooses
to use the toilet facilities while on an
authorized break may not extend the
break time by doing so.
Records
- The Company must keep records of
employee meal periods that show the
actual start and end times of the
meal break.
- There is no obligation to keep a
record of employee rest breaks.
However, since the employer will find
it nearly impossible to prove
compliance without records, many
employers have begun requiring
employees to record all rest breaks.
- Meal period records must be kept
on file by the Company for at least
three (3) years.
Penalties for Non-Compliance
- A penalty of one hour's pay is
imposed for each non-compliant meal
and rest period, going back four
years. Under the current enforcement
regimen, there is a maximum of 2
penalties per day.
- Former employees who did not
receive payment for non-compliant
meal and rest breaks also may be
entitled to thirty (30) additional days
of pay as so-called "waiting time"
penalties.
- The employer is obligated to pay
the employee's legal fees if a
violation can be established.
- State law imposes a stiff penalty if
pay stubs do not properly record meal
periods. Also, the Private Attorney
General law enables lawyers to
collect and share in state mandated
fines for these and other labor law
violations.
For more information, call us today at (818) 508-3700, or visit us on the web, at
