What Every California Employer Needs To Know About Meal Break Violations
Meal Break Violations are one of the most commonly misunderstood California laws for Employers. Knowing what the law says about California Meal Breaks and preparing your business ahead of time, can go a really long way to protecting you from this common Employee legal complaint.
California labor law requires employees take periodic meal breaks.
A common labor complaint filed by employees in California, are meal break claims. You really need to understand what your rights and responsibilities are as an employer, regarding meal breaks so you can limit your liability in this area.
How California Meal Breaks Should be Given
So in plain English here is the minimum you are supposed to do when it comes to employee meal periods.
- If your employee works for more then 5 hours a day then they must be given at least a 30 minute uninterrupted meal break.
- A second meal break is required if they work over 10 hours. This must also be at least 30 minutes of uninterrupted break.
And when they say BREAK they mean BREAK! The employee could complain if they are expected to work during their meal break or are constantly being interrupted. It is expected they are to have their meal period without having to stop and jump back into work as needed.
This means the employee is not expected to answer the phone, email or have a meeting while they are on their meal break. You should definitely not be seen or heard even giving the impression that you expect the worker to skip their break. Make sure that your not making any comments that could be interpreted by employees that you are pressuring them to skip their legal right to their break.
It does not matter how busy it is at your workplace or if this is just a “once in a while” thing. If you start discouraging your employee from taking their meal break you could be opening yourself up to some problems.
Even though you must “provide” the ability or opportunity for your employees to take their breaks you DO NOT have to police it. In other words its not your responsibility or obligation to keep track and ensure that all your employees are taking their breaks at their designated times.
You also DO NOT have to make sure they are not working during their break. All of this is up to the employee and your responsibility is just to make it clear that they are allowed this opportunity. (this was decided upon and clarified by the California Supreme Court in 2012 -> http://www.courts.ca.gov/17489.htm)
We actually encourage our clients to put their meal and rest periods policy in their Employee Handbooks and not only make sure that all employees are aware of it but encourage them to follow it!
Even if that is going a little farther then the law requires it could possibly save you money if their is ever an employee claim, as you can provide evidence that you did everything you could to encourage employees to take their mandatory breaks.
Where There Is A Rule There Is An Exception?
So is there any way around this mandatory meal break for employees? If you have a certain type of business like maybe a restaurant it can sometimes be difficult to follow this law. You may have limited staff, extremely busy periods or unpredictable work hours whatever the case may be, there are certain situations that can make it very difficult to follow this law.
If this is the case for you there is an option.
There is something called “on duty” meal period. On Duty meal period basically means that because of the circumstances of your business you cannot follow the meal break period law exactly, so you and your employee have come to an agreement that they will work through their meal break and be paid for it.
On Duty meal periods have some very specific criteria that has to be met before it can be used.
- You can only designate an employee for on duty meal breaks if the job calls for it. In other words, there has to be a valid reason related to the business operation. For example if you had someone working as a security guard and they were the only person working they would still need to respond if something happened during their meal break. After all if they completely stopped working during their meal break, all the criminals would know to rob your business when they see your security guard picking up his sandwich! : ) There are so many business situations that the law cannot possibly cover them all, so this is more a decision that is made by you if you have a valid reason or not. If a complaint was filed against you and you ever found yourself defending your position in court, you would want to make sure that a reasonable person would conclude that because of the way your business runs you had to use the on duty option.
- Your employee has to agree in writing that they agree to an exception where they are considered on duty during meal periods. Even if you want your employee to agree to on duty meals and the job duties make it necessary, you still have to get your employees agreement to the arrangement. It would be best to approach it in a way where they don’t feel you are pressuring them or forcing them to take this arrangement. Also, you the employer and your employee must agree to this arrangement in writing! Them just telling you its OK is not good enough! We have seen somany cases where the employer gets a verbal agreement from the employee only to find themselves in court months later with the employee conveniently forgetting that conversation.
- You have to pay the Employee during their on duty break. You need to pay your employee their regular rate during their on duty meal break and cannot discount their pay in anyway. Lets say your employee agrees to on duty meal breaks but they only have to interrupt their break if the phone rings and that does not happen often. You decide since its a rare occurrence you will pay them a discount during the meal period. Uh, uh. Not going to fly. It’s an all or nothing type deal. If you decide to go this route you will need pay them during their break the same amount you do during their standard working times.
More Details On Meal Breaks and Rest Periods
Timing of Meal Breaks
- If your employees work over 10 hours a day, they are entitled to a second meal break of at least 30 minutes.
- In some cases, you can agree with your employees to waive this second meal as long as they do not work over 12 hours a day and the first meal break is not being waived.
- Furthermore, you should relieve all your employees of all their duties during their meal breaks. They should not perform any work during this 30 minutes break.
Timing of Rest Break
A Rest break is a different then a meal break. Here are the rules for Rest Periods.
- You must allow your employee at least a 10 minute break for every 4 hours worked.
- If the employee works 31/2 hours or less there is no requirement for a rest break.
Meal Break Violation Penalties
So here we come to the tough part. What penalties can you expect if you are found to be in violation of meal and rest breaks for your employees?
The standard minimum penalty you can expect is a payment to your employee of an additional hour for each day they missed their break.
So for example if you pay your employee $15 dollars an hour and they work 5 days a week and missed their breaks for a year it may look like this.
5 days a week x 4 weeks = 20 days/20 days x 12 months = 240 days/$15hr x 240 = 3600
Note that this is the minimum to expect. You could be hit with a separate penalty for both missed meal breaks and missed meal periods.
There is also the possibility of being charged an interest rate which is typically 10% a year.
You could possibly be charged extra penalties if they prove that you willfully refused to provide meal periods. This is typically 30 days of pay for EACH employee who you have lost the complaint against.
These claims against you can go back 3 years (possibly 4). As you can see there is a huge window of the amount of liability depending on your specific situation. It would be impossible to assess your risk without knowing the exact particulars of your situation so you can use the information here to assess your situation. Of course you can always contact us for a one on one consultation where we can give you accurate information about your specific case.
So there are many laws when it comes to California meal breaks BUT they are not difficult to understand if you read this article carefully.
The most important things that you and your business can do:
Is know the laws and document them.
Make sure your company and all the managers and employees are aware of the policies with professional, labor attorney drafted, Employee Handbooks.
If you find yourself with a meal claim made against you contact an attorney right away! In the long run it will save you money to have professionals handling your case and in some situations they may even be able to get the whole thing dismissed.
If you are knowledgeable of and careful to implement employee meal break policies that are compliant with California law than your business should mostly be protected from this liability.
If you have a complaint regarding employee meal breaks filed against you in California CONTACT our California employer attorneys who specialize in these cases.