Tuesday, June 14, 2011

Meal breaks and rest periods: nonexempt California employees must get both, or you will pay the price

The most straightforward of California's wage and hour laws is also one of the easiest to fall foul of. Most employers know nonexempt employees have a legal right to take certain breaks during the day. Most employers also know that it can be hard to get employees to break for lunch or stop half way through a deadline project to take a ten minute rest break. This hits small businesses especially hard: if you only have one or two employees, having 30 minute meal periods in the middle of the day can be disruptive and lose you valuable business.

However, enforcing meal breaks and rest periods is one of the smartest business decisions you can make.

In United Parcel Service v. Superior Court (Allen) the Court of Appeal ruled that employees who don't get a meal break and rest period during the work day are entitled to two premium payments: one for a missed meal break AND one for a missed rest period. This means that under the law, you must pay an additional hour of pay for each missed meal break, and an additional hour of pay for each day that a rest period is not provided. Under this latest interpretation of the law, you would have to pay employees for ten hours a day, even if they only worked eight hours. If you don't have a meal break and rest period policy, now is the time to get one.

California Meal Breaks 101: any employee working for more than five hours per day must have a meal break of not less than thirty minutes. If the employee works a total of six hours or less in a day, employee and employer can agree to waive the meal break. If an employee works more than ten hours a day, a second meal break must be provided unless the employee works a total of twelve hours or less, took the first meal break, and the employee and employer agree to waive the second meal break. Meal breaks do not have to be paid.

Note that you have to relieve an employee of all duty during the meal break, or it doesn't count. This means no telephone calls, no errands for work and no quick photocopies - otherwise, the thirty minutes starts over again. Similarly, you can't require an employee to remain on site for lunch unless you agree to pay them for their meal period. There are limited exceptions to this (for example, if you only have one employee, in certain categories of employment such as a lone security guard at a remote location). Don't count on the exception, and if in doubt, consult with an attorney.

California Rest Breaks 101: California nonexempt employees are entitled to a ten minute paid rest period in the middle of each work period. A good rule of thumb is one in the morning, one in the afternoon for a standard eight-hour employee. If the employee doesn't work more than three and a half hours, you don't need to give them a rest period. Unlike meal breaks, you can require employees to remain on site for a rest period - but like meal breaks, if the employee does ANY work during the rest period, it doesn't count. The rest break must be ten consecutive minutes.

If an employee works through their meal break, or doesn't get a rest period, the smart thing to do is to pay them for the penalty hour. Check time cards (it's a good idea to add language having the employee certify that they took all meal breaks and rest periods) and if in doubt, pay the extra hour penalty wage and notify the employee, in writing, that they must take the statutory meal breaks and rest periods in future. It could save you from some costly wage and hour litigation; prevention, in business, is always better than cure.

Read more about Meal Breaks here.

Read more about Rest Periods here.

Contact me to learn more about protecting your business from wage and hour claims.

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