It looks like it’s been a minute since I have reviewed these rules for you all. But no matter how much we talk about them, meal and rest break claims are still at the heart of nearly every wage and hour lawsuit we see – whether it’s a class action, a PAGA suit, or an individual lawsuit or administrative claim. And when these lawsuits hit, my clients all assure me that they are “compliant,” but more often than not, we find an issue. In a recent PAGA mediation, our opposing counsel made the statement “perfect compliance with California Labor laws is impossible.” I asked if I could quote him, so I am, even without his permission.
For the record, here are the RULES on meal and rest breaks in California.
Meal Breaks – California law states that non-exempt, hourly employees must be provided a meal break of at least 30 minutes within the first five hours of an employee’s shift. The meal break need not be paid, but it must be completely duty free and uninterrupted. If both the employer and employee agree, the meal break may be waived IF THE EMPLOYEE WORKS NO MORE THAN SIX HOURS FOR THE DAY. The waiver need not be in writing, but we HIGHLY recommend that it is. The waiver need only be signed once, and it should provide a way for the employee to revoke the agreement. We have samples of these waivers, in both English and Spanish, if you have not received an updated form recently.
The employee must receive this 30-minute, duty free meal break EVERY five hours, however, if the employee has timely taken their first meal break, they may waive the second meal break so long as they do not work more than 12 hours. We add this language to waive the second meal break in the same waiver I reference above.
Here is the tricky part. Often, employers have part-time employees scheduled to work under six hours, so they do not schedule a meal break. However, if employees wind up working past that six-hour mark, even by one minute, there is a violation – because they did not get that meal break within the first five hours.
Once there is a meal break violation, you owe the employee one hour of extra premium pay at the regular rate of pay (reminder to go back and check the article I wrote about how to calculate regular rate of pay). You also owe this one of hour of break pay if the meal break was late (after five hours), short (under the full 30 minutes) or interrupted.
AND, if you fail to pay this premium pay, you may well owe WAITING TIME PENALTIES if the employee leaves employment without receiving all these premium payments. California Labor Code Section 203 requires that employees receive a full day of wages for every day that they are made to wait for all their wages after termination for a maximum of 30 days, which includes these premium payments. This is why it is SO important to get all these premium payments calculated and paid timely, before employees separate from employment.
Because these missed break payments can add up, it is tempting for frustrated managers to try creative ways to “fix” the problem when an employee keeps “accidentally” working over that six-hour mark. And hey, I get it. Sometimes it seems as if these employees purposely take their time getting to the time clock, either missing the five-hour window or the six-hour mark, or even punching in from lunch one minute early, thereby triggering that one hour of extra pay. And it is so easy for these managers to just “tweak” those records, claiming that these employees were not really working anyway. But now we have a time shaving issue, often labelled as “wage theft.” Employees failing to take timely breaks should be disciplined, assuming it was the employee’s fault. Truly, getting employees out on breaks timely is a management duty, and your managers should be held accountable.
These rules are complicated and it’s easy to get the “five-hour rule” confused with the “six-hour rule.” I’ve seen mediators and judges get them mixed up. So, you can imagine how easily your managers get this wrong. But these are VERY costly mistakes. TRAIN YOUR MANAGERS. Send them a copy of this article. Schedule a training class (yes, we conduct these).
Rest Breaks – Employees (non-exempt) are entitled to a ten-minute PAID rest break, also duty-free and uninterrupted, for every four hours or major fraction thereof. California has interpreted this to mean that employees who work 3.5 hours are entitled to one rest break, and if they work more than six hours, they are entitled to a second rest break. After ten hours, employees get a third rest break.
Because these rest breaks are paid, employees need not clock out for rest breaks. However, that makes it easy fodder for employees and their attorneys to claim that employees were denied the opportunity to take them. And failing to provide timely rest breaks that are fully relieved of duty evokes the same one hour of premium pay that we see for meal break violations.
How do we prove compliance with rest break rules? It starts with a compliant, written rest break policy. For example, a policy that says employees get a rest break for every four hours but lacks the phrase “or every major fraction thereof” is on its face unlawful. Also, how do we prove that employees were truly able to take their rest breaks? Are they scheduled? How busy is the workplace? Is someone scheduled to cover these employees while on break, or are they free to leave their workstations? Are employees reminded of their right to take these rest breaks? ARE YOUR MANAGERS? Again, training, training, training.
Failure to pay all rest break premiums upon or before termination also triggers waiting time penalties.
Common meal and rest break mistakes – As if these rules are not complicated enough, employers seem to find creative ways to stumble into violations. Here are just a few things that will draw a lawsuit:
Automatically deducting the 30 minutes from an employee’s time, or having managers record the breaks. Just don’t. There is no way to prove that these employees got their timely breaks, and they will always say they did not.
Prohibiting employees from leaving the premises during breaks. Employees have the right to leave the premises during meal AND rest breaks, even if time does not permit them to travel far.
Changing employee time to show they timely received breaks. Employee time records must be sacrosanct. Any time edits should be done only to correct a true mistake AND signed off BY THE EMPLOYEE.
Interrupting employee meal OR rest breaks, or requiring them to carry an employer phone or respond to messages. Fully relieved means FULLY RELIEVED. Be careful with hourly managers, security guards, nightshift employees. Employees stuck in a car or on a plane are similarly not relieved of all duty. And law firms – stop allowing attorneys to interrupt their assistants taking lunch “with that quick question.” It can wait until they are back from lunch.
Rounding break time. There is no allowance for grace periods or rounding with breaks. And just stop rounding, everywhere.
Relying on blanket “employee testimonials.” I am often asked for forms or statements that employees can sign, attesting to the fact that they have “received all timely breaks.” Any kind of form or blanket language that employees are asked to sign to in order to clock out or receive their checks will be seen a subterfuge by opposing counsel. These are not statements that employees are free to change or decline, and we all know that.
On the other hand, some of my clients are asking employees at the end of their shifts about their ability to take rest breaks, and depending on the response, a rest break premium is added. We have signed off on a few of these processes.
Like the regular rate issue, this is a lot to process. But it is still the number one issue we see in these wage and hour cases. Reach out if you have questions. Again, this is what we do.
