WORKPLACE LAW -
Providing Meal Breaks
Question:
My business employs a lot of drivers who work away from our main facility. Our policies require employees to take a 30 minute unpaid meal break, but we have no way knowing if our employees do so. One of my friends in business recently told me one if his employees sued him for missed meal periods! What is the law, and how does it apply to my business?
Answer:
There is still a lot of confusion among employees and employers concerning the requirement that the employer “provide” a meal break to non-exempt employees. Unfortunately, neither the Department of Labor Standards Enforcement (DLSE) nor the courts are helping clarify this issue.
The California Labor Code and the Industrial Welfare Commission wage orders set forth the general requirement that every non-exempt employee who works six hours or more in a workday must be provided a 30-minute, off duty meal period. Some exceptions apply to employees in certain circumstances. The requirement that the employer “provide” the meal period means that the employer must make sure the employee actually takes the meal period before the start of the employee’s fifth hour of work. The employer is also required to keep records to establish that it provided the meal period. This normally involves having employees clock in and out for their meal periods, or record the start and end time on a time record. The DLSE, which enforces wage and hour law in California, has consistently taken the position that it is the employer’s duty to make sure the employee actually takes the meal period each workday, starting no later than the employee’s fifth hour of work, and have the records to prove it. Employers are required to pay the employee an extra one hour of pay for each meal period that is not taken (or that is not timely taken), regardless of the reason. The California case of Cicairos v. Summit Logistics, 133 Cal.App.4th 949 (2005) follows the DLSE's interpretation of the law.However, two recent cases have generated confusion in this area. In 2007, in a case against Starbucks, the federal U.S. District Court for Northern California held that an employer complies with its obligation to "provide" meal periods if the employer makes the meal periods available to employees and provides the opportunity for employees to take them. Under the Starbucks case, in order to prevail on a meal period claim, an employee would have to show that he or she was "forced to forego" meal periods, not simply that the employee did not take the meal period.
Earlier this year, the U.S. District Court for the Central District of California heard a case involving Federal Express delivery drivers who were allegedly pressured to make deliveries as quickly as possible, and as a result they were unable to take meal and rest breaks within the time required by law. One employee sued, seeking class action status to proceed on behalf of class members who missed their meal and/or rest breaks. In denying class certification, the court held that FedEx's requirement to "provide" meal periods only meant making meal periods available to employees. The court held that the law “does not suggest any obligation to ensure that employees take advantage of what is made available to them."
Legislation is pending this term to address this confusion. Senate Bill 1192 proposes to clarify this issue by amending the Labor Code to state that an employer “provides” a meal or rest period by making one available to the employee without interfering with its use. The bill is currently in the Labor & Industrial Relations Committee for consideration.
In the meantime, employers should follow the DLSE and Cicairos v. Summit Logistics (2005) 133 Cal.App.4th 949 interpretation, which requires the employer to make sure the employee actually takes the meal period before the start of the employee’s fifth hour of work, and to keep records to establish that it provided the meal period. In your situation, it is important to enforce your policy requiring the employees to timely take their meal periods, and have the employees record the start and end time of their meal periods on a time record. Remember that the employee must be provided a full 30-minute duty free meal period, so time driving to or from their next assignment is work time and is not a part of the employee’s meal break. It may also be helpful to have each employee sign a statement on their periodic time record stating that the time record accurately records their work hours, and that they have taken their meal and rest periods during the pay period.
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