new regulation that would add some flexibility to the law requiring meal and
rest breaks for employees. But it now appears that the wait will be longer than
anticipated. The Division of Labor Standards Enforcement (DLSE), the state
agency that proposed a new meal and rest break regulation on Jan. 14, 2005, had
one year to complete the rulemaking process and promulgate a final rule. That
one-year deadline has now come and gone— which means the agency will have to
start over.
This amounts to an
unfortunate development for employers because the law on when meal breaks must be
taken is inflexible. And, going after employers for meal and rest break
violations has become a favorite target for class action suits here in the
Employer Hit with Huge
Verdict
A recent verdict
underscores the risk employers face from such lawsuits. An Alameda County
jury—after a four-month trial and just three days of deliberation— slapped
retail giant Wal-Mart with $172 million in damages for denying employees
legally required lunch breaks. Approximately 115,000 current and former employees
in
will share the proceeds.
The suit charged
Wal-Mart with violating California Labor Code provisions requiring employers to
provide employees who work at least 5 hours with an unpaid 30-minute meal
break. The employees claimed that Wal-Mart’s corporate policies fostered the
meal break problem. For example, the suit alleged, company policy creates a
financial incentive for managers to hold down store expenses, which include
payroll. And, employees who complained about not being given time for meal or rest
breaks were “coached.” Behind the coaching was a “veiled threat of
termination,” according to the lawsuit.
Know the Rules for Meal
Breaks
Unfortunately,
high-profile lawsuits such as this can spur copycat suits—so make sure you
strictly comply with the current meal break law. Here’s a quick rundown on the
requirements:
• Meal periods. Employees
who work at least five hours in the workday must receive an unpaid meal period
of no less than 30 minutes. The meal period may be waived if the employer and
employee agree, as long as the employee won’t work more than six hours. A
second meal period is required if the employee will work more than 10 hours.
This second meal period can be waived if total hours worked don’t exceed 12 and
the first meal period wasn’t waived. If the employee isn’t relieved of all duties
during a meal period, the mealtime will be counted as time worked—which means
you have to pay the employee for the time.
• Rest periods. Employees
are entitled to take paid 10-minute rest breaks for each 4 hours worked. The
breaks should be in the middle of the work period and are counted as time
worked. You don’t have to provide rest breaks for employees who work fewer than
31/2 hours. Permitting
employees to use toilet facilities doesn’t meet your rest period obligation.
Stay Tuned
It’s hoped that the DLSE
will take a new stab at a meal break regulation in the near future. We’ll stay on
top of any developments.
Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.