Meal and Rest Break Compliance for California Employers: Best Practices

Meal and Rest Break Compliance for California Employers: Best Practices David Van Pelt Kate Visosky April 17, 2013

Meal and Rest Breaks in California • How do you ensure that your company is in compliance? • How do you avoid taking unnecessary steps?

What is the Law? • Meal Periods • The California Labor Code and Wage Orders require that an employer may not “employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.”

What is the Law? (Cont.) • Exception 1: When an employee completes his/her shift in six (6) hours or less, the meal period can be waived by mutual agreement. • Does the agreement have to be in writing? • Not required by law, but best practice says yes.

What is the Law? (Cont.) • Exception 2: An “on-duty” meal period is permitted when “the nature of the work” prevents an employee from being relieved of all duty and when the parties agree in writing to an on-the-job meal period. • “On-duty” meal period involves an employee working during the meal period. • The employee must be paid during an “on-duty” meal period. • The “nature of the work” standard is tough to meet.

What is the Law? (Cont.) • Rest Periods • Every employer shall “authorize and permit “ non-exempt employees to take paid rest periods “at the rate of ten (10) minutes” per “four (4) hours or major fraction thereof” worked. • A rest period need not be provided if the work period is less than 3.5 hours.

What is the Penalty? • For each work day that a meal or rest period is required but not provided, one hour of pay is due to the employee. • Therefore, an employer can be required to give an employee an extra 2 hours pay per day if the meal period and rest periods are not properly provided.

What the Brinker Case Did Not Hold • Brinker did not excuse companies from responsibility for meal or rest periods. • Brinker did not leave the timing of meal/rest periods up to the employee.

What the Brinker Case Did Hold • To “provide” a meal period, employers are required to make sure that employees… • Are relieved of “all duties” for at least 30 minutes; and • Are free to leave the workplace if they wish. • The first meal period must be made available after no more than 5 hours of work; the second, after no more than 10 hours of work. • An employer is not liable if an employee is “relieved of all duty” but chooses to work.

What BrinkerDid Hold (Cont.) • If the employer knows or reasonably should know that an employee performs work during the meal period, the employee must be paid for the time worked. • However, the employee is not necessarily entitled to the meal period penalty in that case.

What BrinkerDid Hold (Cont.) • A ten-minute paid rest break must be provided for every “major fraction” of four hours after working at least 3.5 hours: • One 10-minute break from 3.5-6 hours. • Another break for shifts of 6-10 hours. • Another break for shifts between 10-14 hours. • Employers do not have to provide a rest break before the meal period, although it is best practice to space out the rest breaks throughout the workday.

Issues Left Unclear by Brinker • Question: Can an employee claim a violation where his workload left him no choice but to perform work during the meal/rest breaks? • Answer: Yes, but it is not clear how busy an employee must be to make that claim valid. • Result: An employer should not create impediments that prevent employees from taking uninterrupted breaks.

Suggested Best Practices • The Policy - Meal Periods • Important to have a written policy that provides that: • An uninterrupted meal period of at least 30 minutes will be provided to each employee; and • The first meal break will be provided before the end of the fifth hour of work; and • Employees are relieved of work duties and can leave the premises during the meal period.

Suggested Best Practices (Cont.) • The Policy – Rest Breaks • Important to have a written policy that: • Makes clear that employees are provided a rest break for every four hours or “major fraction” thereof -- • 3.5 to 6 hours of work, 1 rest period; • After 6 hours of work, 2 rest period; • After 10 hours of work, 3 rest periods. • Employees are relieved of work duties during the rest period.

Suggested Best Practices: The Policy • The policy should be acknowledged in writing by employees. • Reminders of the policy should be circulated periodically to employees.

Suggested Best Practices: Timekeeping • Meal Periods • The time recording system should record meal periods. • The time recording system should not automatically record a 30-minute meal period, regardless of whether it is taken.

Best Practices: Timekeeping • Rest Breaks • Should employees clock in and out for rest periods? • Probably not. • Because it is paid, it is too easy to forget and too time-consuming to enforce.

Best Practices • Should employees acknowledge in writing that their hours are correct when they get paid? • Pros: • It can provide useful evidence to respond to claims of “off-the-clock” work or missed meal periods. • Cons: • Employees can claim that they were coerced. • If the practice is not consistently followed then it is of little use.

Best Practices – The Penalty • Should employers self-impose a meal penalty when the meal period is missed or less than 30 minutes? • Pros: • May limit the likelihood of a claim. • Limits potential damages if an employee brings a claim. • Cons: • Automatic penalty is unnecessary in cases where the employee was provided a meal period but worked anyway.

Best Practices – Training & Discipline • Managers: • Important to train them on meal period compliance, necessity of providing meal & rest periods within an acceptable timeframe. • Employees: • Discipline employees who fail to record meal periods, or clock out for a meal period but continue to work.

Best Practices – Schedules • Consider building meal/rest periods into employee schedules. • Easier to track compliance; but • May be impractical. • Managers must be clear about timing of meal/rest periods if they schedule them.

Thank You • David Van Pelt • (310) 228-3734 • dvanpelt@sheppardmullin.com • Kate Visosky • (310) 228-3746 • kvisosky@sheppardmullin.com

Meal and Rest Break Compliance for California Employers: Best Practices