A question that arises quite often by employers is how and when to provide employees with meal and rest breaks. Violating these employee rights could lead to an expensive endeavor for the business owner.
Meal Periods
Under California law, employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for certain employees in the motion picture industry). Unless the employee is relieved of all duty during the entire thirty minute meal period and is free to leave the employer’s premises, the meal period is considered “on duty,” and must be counted as hours worked, and paid for at the employee’s regular rate of pay.
An “on duty” meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee there is an agreed on-the-job meal period.
The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a
remote site.
An employer is not required to ensure that no work is performed. However, an employer must do more than simply make a meal period “available.” In general, to satisfy its obligation to provide a meal period, an employer must actually relieve employees of all duty, relinquish control over their activities, permit them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please), and must not impede or discourage employees from taking their meal period. (For some employees in the health care industry minor exceptions exist as to the employee’s right to leave the employment premises during an off-duty meal period.) Employers may not undermine a formal policy of providing
meal periods by pressuring employees to perform their duties in ways that omit breaks, such as through scheduling policies that make taking breaks difficult.
In general, an employee who works for a work period of more than five hours must be provided a meal period no later than the end of the employee’s fifth hour of work. When an employee works for a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hour of work, although these rules are subject to certain waivers by mutual consent (and different rules apply to employees in the motion picture industry.)
An employer is not liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control. However, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). Also note employees are not permitted to work through meal periods so they may leave work early.
Rest Periods
In California rest periods are based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four-hour work period, or major fraction thereof. Anything more than two hours is considered a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods (an exception exists for certain employees of 24-hour residential care facilities who may have their rest period limited under certain
circumstances. There is also another exception for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who must be given additional interim rest periods during periods of actual rehearsal or shooting.)
Failure to provide an employee a rest period requires the employer to pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday.
California has become a battleground for wage and hour litigation. To avoid litigation every employer should be proactive. Work with an attorney to ensure your organization has a valid and effective written meal and rest period policy that addresses when meal/rest breaks are to be taken and what to do when a break isn’t taken. The written policy can make all the difference in defending a class action meal/rest period case.
Employers should also provide training for supervisors so that they understand and know how to enforce meal and rest breaks. Keep accurate time, meal and rest period records. California law imposes the duty on employers, not on their employees. A continuous, thorough review of these records is essential to ensure employees are taking and recording meal breaks before the end of the fifth hour. This is critical to the defense of wage, meal and rest break claims.
With the advent of the Private Attorney General Act (PAGA) employees can now bring claims on behalf of all similarly aggrieved employees and recover attorneys’ fees, penalties and damages for all such employees without having to bring a class action. Therefore, it is imperative that employers know the applicable rules and consult with legal counsel to assure they are being followed.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
