You’re probably among the millions of California employers eagerly awaiting a definitive ruling from the state Supreme Court about meal and rest breaks.
Specifically, the court will decide whether employers need to ensure that employees take their meal breaks, or simply provide employees the opportunity to take the meal breaks. The court’s decision will either put an end to most meal break litigation or ensure a flurry of fresh lawsuits.
In the meantime, it’s important to remember that you have another duty relating to meal breaks—the duty to keep daily records of meal breaks taken, or not taken, by each and every nonexempt employee.
The Industrial Welfare Commission wage orders require that employers keep daily records of not only the start and end time for each employee’s work day, but also whether or not the employee took a meal break and for how long. (Access the wage orders here.)
Sound like a pain in the neck? It is. But it’s also a good idea. While the wage orders do not provide a specific penalty for failing to record employee meal breaks, such records generally constitute your only way of proving that an employee did in fact take his or her meal breaks. And since employers, not employees, bear the burden of keeping accurate records, failure to record meal breaks can result in having no defense to employee claims that meal breaks were missed.
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If the Supreme Court decides that employers are in fact required to ensure that employees take their meal breaks, having no meal period records could mean owing substantial back pay to employees for missed meal period premiums. Employees who miss a meal break should be paid a missed meal period premium (one hour of pay at the employee’s regular rate) along with their regular wages.
Since you probably require your nonexempt employees to record the hours that they work, it’s a good idea to require them to keep track of each day’s meal breaks at their end, too.