Meal and rest break
lawsuits are all over the news these days, and employers are paying out
multimillion-dollar verdicts and settlements. Do you know the ins and outs of
the rules well enough to avoid being the next target? At the Employer Resource
Institute’s 2006 California Employment Law Update conference in Berkeley last
October, Kathryn Davis, an attorney with the
& Forester, explained the legal requirements for meal and rest breaks and
answered participants’ questions.
Know the Rules
In California, Davis
explained, employers must “authorize and permit” employees to take a 10-minute paid
rest period for each four hours of work—although you don’t have to provide a
break to employees who work 31/2
hours or
less. The break should be taken as close to the middle of the work period as
possible. Note that the 10 minutes is the “net” break time that must be permitted—thus,
you may have to allow a bit of extra time if the employee has a long walk to reach
an appropriate area, such as a lunchroom, that is appropriate for rest.
Meal periods of no less
than 30 minutes must be provided for an employee who works at least five hours.
Also, two 30-minute meal periods are required for work shifts of more than 10
hours. Meal breaks can be unpaid if employees are free to leave your premises during
the break.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Questions, Anyone?
With these basic rules
in mind,
fielded questions from conference participants. Here’s a look at what’s on
employers’ minds about meal and rest periods:
Am I liable if an
employee doesn’t take an authorized rest break?
for employers between the rest break and meal break requirements: while
employers must simply authorize and permit employees to take a rest break, they
must actually provide a meal break. Thus, you don’t have to force an employee
to take a rest break, although you do have to make sure that you have authorized
the break and made it possible for the employee to take it. The problem is that
it will be the employee’s word against yours if you’re sued—so it is best to
implement practices to ensure that employees actually do take their required
breaks.
Do we have to give
employees a few extra minutes tacked onto their rest break time so they can use
the restroom? Time needed to use the restroom is part of the employee’s break,
so you don’t have to provide extra time for this purpose.
What can I do about
smokers who are taking more frequent or longer breaks than they’re entitled to?
have to provide smokers with extra break time so they can go outside to smoke.
If smokers are taking more break time than permitted, you can deal with the
problem through discipline.
What are some strategies
we can use to ensure employees are taking their rest breaks? The best practices are
to require employees to clock in and out from their breaks and to have them
sign an acknowledgement on their weekly time card that they have taken all of
their breaks.
offers the following acknowledgement language: “I have reviewed the time entries
entered above and confirm that they are accurate and complete. I confirm that I
have been provided an opportunity to take all rest breaks and meal periods to
which I am entitled.”
How do we handle it if
an employee misses a meal break, such as for a mandatory lunchtime training
meeting? There are situations when a missed lunch break is unavoidable. You
can do one of two things. You can give the employee a 30-minute break before or
after the meeting (provided it is within the 5-hour limit). Or, you can pay the
one-hour penalty. If you choose this route, be sure to itemize and identify the
penalty on the employee’s pay stub. Also, whether the penalty is the same as
wages is currently an unanswered question—which means it is unclear whether axes
must be withheld. Until this is resolved, the safest course is to withhold
employment taxes or check with your employment counsel.
Can we grant an
employee’s request to take a late afternoon (around 2:30 p.m.) lunch, even though
her workday starts at 8 a.m.? No, because the meal break must begin by the
fifth hour of work.
Can we allow an employee
to skip his one-hour lunch so he can leave early to pick up his children? Permitting the employee
to skip lunch would violate the meal break rules, but you do have some options,
example, you can provide a 30-minute lunch period that day (which is all the
law requires) and let the employee leave 30 minutes early. Then, the person can
do makeup time later in the week (as long as the makeup time is voluntary), or
you can dock his or her pay for leaving early.
Are we liable for the
penalty if an employee clocks in a minute or two early from the 30-minute meal
break? You would have to pay the penalty. The best way to deal with and
avoid this situation is to discipline employees who clock back in too early.
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1 Koehl v. Verio Inc.,
(Dist. 1) Nos. A108972, A110110, A110447