WORKPLACE LAW - Employer in Monterey
Question:
As an employer, am I required by law to force my employees to take breaks during the workday? I know that employees are entitled to breaks and meal periods, but sometimes people prefer to work through their breaks or to skip lunch, especially if they want to leave early that day. Is this OK?
Answer:
As you correctly state, non-exempt employees are entitled to rest and meal periods under the California Labor Code and the California Wage Orders. The number and length of those breaks is determined by the number of hours that an employee works in a given workday. Currently, employees are entitled to a 10-minute break for every four hours that are worked, and to a 30-minute meal during period during which no work is performed if the employee’s shift exceeds five hours. If the employee will only be working a 6-hour day, he/she can voluntarily choose not to take the meal period by signing a waiver. Employees working more than 10 hours are entitled to a second 30-minute meal break.
Employees are permitted to waive their 10-minute rest periods if they wish, and if they have truly been provided with the opportunity to take their break but simply do not wish to do so. This same rule does not apply to meal periods, however, which are mandatory. Employees must clock in and out for their meal periods. If an employer fails to provide an employee with a full 30-minute meal period (or if the employee is denied his/her rest period), the employer is required to pay the employee for one additional hour of pay at the employee’s regular rate of compensation for each day that the meal or rest period was not provided.
There has recently been some dispute as to whether failure to compensate an employee for a missed meal or rest period means the employer is liable for a penalty or for a missed wage. Several courts have held that payments for missed meal and rest periods are “penalties,” which carry a one-year statute of limitations (i.e., the employer would be liable for missed meal/rest periods dating back one year). However, at least one appellate court has held that payments for missed meal and rest periods should be treated as “wages,” which would mean the employer could be liable for up to four years of back payments. This disagreement among the courts has prompted the California Supreme Court to take up the issue, though a decision has not yet been handed down.
The rules regarding employee meal and rest periods can obviously be very confusing. This is especially true in light of recently proposed regulations that would have significantly changed the rules governing this area of the law. Under those proposed regulations, an employer would have been deemed to have provided a meal period to an employee if the employer: (1) made the meal period available to the employee, (2) posted the applicable wage orders regarding meal periods, and (3) maintained accurate time records for employees. An employer who did all of these things would therefore not have been liable for fines or penalties if an employee missed his/her meal period and was not compensated for it.
However, the Division of Labor Standards Enforcement has declined to file the regulations proposing the above changes, and employers are therefore still held to the rules regarding mandatory meal periods for their employees. While it remains unsettled as to just what the punishment is for allowing employees to miss their meal periods, employers should realize that they will be financially liable to at least some extent if an employee makes a wage claim based on failure to pay for missed meal and rest periods.- - - - - - - - - - - - - - - - - - - - - - - - - -
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