Meal & Rest Break Violation
It happens more often than you think – employees often work entire shifts without receiving a lunch or ten minute rest period. This would be a break violation. Continue reading to see if your employer has committed a break violation.
MEAL BREAKS
California law states that no employer shall employ any person for a work period of more than five hours without providing a meal period of no less than 30 minutes. If the total work period of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than 30 minutes is required if an employee works more than ten hours per day. If the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512.
There some stipulations to providing a bonafide meal break. The California Supreme Court in the Brinker Restaurant Corporation case stated that: (1) the employer must relieve the employee of all duty; (2) the employer must relinquish control over all activities of the employee: (3) the employer must permit a reasonable opportunity to take an uninterrupted 30 minute meal break; and (4) the employer must not discourage or in any way interfere with the employee taking an uninterrupted 30 minute meal break.
It is important to note that unless the employee is relieved of all duty, allowed to leave the work premises, and free to do whatever he/she pleases during that 30 minutes, the meal period shall be considered an “on duty” meal break. It is then counted as hours worked which must be compensated at the employee’s regular rate of pay. Even if the employee is relieved of all duty, if the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
If an employer fails to provide an employee their meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.
Under all of the IWC Orders except Orders 12, 14, 15, and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink.
REST PERIODS
California law requires that employers must authorize and permit employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a “major fraction” of four.” A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods.
If an employer fails to provide an employee a rest period in accordance with an applicable IWC Order, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Labor Code Section 226.7 Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday, not one additional hour of pay for each rest period that was not provided during that workday.
The rest period is defined as a “net” ten minutes, which means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.