California employee misses rest break or meal period: What happens?

What are the consequences for a California employer if an employee misses meal periods or rest breaks? The primary consequence is that premium pay is now due. Premium pay is assessed at one hour of regular wages for each day in which there is a violation. In addition to the premium pay penalty, there are other potential damages and costs.

These costs include:

• Unpaid wages for the time worked by not previously paid.
• Waiting time penalties. This is a penalty for not paying wages during the pay period. The penalty is a full day’s wages, to be paid at the employee’s current daily rate, for each day of waiting up to 30 days of waiting time.
• Interest on the unpaid amounts.
• Attorneys’ fees.

As if these fees weren’t enough, the statute of limitations is 4years. Employees can go back up to 4 years from the point they file their lawsuit. All missed rest breaks and meal periods can be recoverable. These are the risks of claims and penalties the company is undertaking with violations.

Missing rest breaks and meal periods in California: How to correct deficiencies

With penalties that accrue so quickly, it is in a California employer’s best interest to correct any deficiency as soon as it is discovered to minimize the amounts due.

“If you know or should know and investigate and find out that an employee has worked during their rest break or their meal period and should have been afforded the time off (off duty), the solution in that context is to pay the premium pay penalty if [the time worked] is something that was at all either expressly or implicitly required by management.” Allen M. Kato advised in a recent CER webinar. “You also need to pay any resulting time worked and overtime for the work during a normally unpaid meal period.”

You should also correct the time record to accurately show that the employee missed a rest break or meal period. The payroll personnel should be trained to know that an updated time record should prompt these types of payments.

Obviously, avoiding these situations is preferable to correcting them. Here are some preventative steps to avoid repeat violations:

• Train your managers and supervisors. Explain what they need to know and what they need to do and say (and not say) to prevent violations of the California meal period and rest break laws.
• Train employees to accurately and immediately record missed rest breaks and meal periods.
• Discipline an employee who is knowingly violating the company policy. (However, be sure to avoid retaliation claims. For example, if the employee has complained in the past about missed meal periods and you later discipline them for such, this may be problematic. Consult with counsel.) Be sure to pay them for the work done even if you discipline them.

The above information is excerpted from the webinar “Meal Periods and Rest Breaks in California: What You Must Do to Comply Post-Brinker.” To register for a future webinar, visit CER webinars.

Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.