With penalties accruing and the potential for lawsuits, most California employers try to be extra careful to stay in compliance with the meal and rest period requirements under California law. But missteps can add up quickly, and lawsuits often mean high settlements. What can be done to try to avoid accidentally not providing employees with the meal and rest breaks they're entitled to?
Tips for Ensuring Meal and Rest Break Compliance in California
Here are some tips for employers to help ensure that meal and rest breaks are taken appropriately:
- Evaluate systems to ensure that they do not hinder or impair employees taking rest and meal breaks. For example, ensure that employees are not being scheduled too much. Ensure employees aren't incentivized or dis-incentivized in ways that prompt them to skip breaks, such as by requiring work to be done by a specific time, (especially if it's too much work, which may make an employee skip breaks to meet the requirements).
- Look into patterns of missed meal/rest breaks. If you see patterns where employees at a certain locations skip more meal breaks than employees at other locations, for example, determine why. Is something preventing them from complying with your policies?
- Schedule breaks and relief if need be to ensure they happen, rather than relying on employees to do it without prompting.
- Ensure that employees record the time out and time in for the meal period. (Remember, in the absence of proof that an employee took a meal period – such as clocking out – it will be presumed they did not. It is the employer's responsibility to ensure they have the opportunity to take the meal break. You can also discipline employees for not following your policy.)
- Have a compliant written "on-duty meal period agreement" on file (if applicable). If you have a situation where you need employees to take meals while still on-the-clock, this must be agreed to in advance in writing. (And it is only allowed when circumstances do not permit the employee to take the meal off the clock – it's not just by agreement).
- "Program automated scheduling systems to trigger violations and show premium pay requirements." Marc Jacuzzi suggested in a recent CER webinar. In other words, if you have an automated system for your timekeeping and it shows in there that somebody didn't take the half hour for the meal break, have the system send an automatic prompt to payroll to pay the penalty hour. And to avoid employees taking advantage of this for more pay, also have the system automatically trigger a notice to HR to send communications to the employee as a way to follow up on why the full meal break was not taken (and possibly prompt disciplinary action when needed).
- Establish a system for employees to report violations. This lets you get to the bottom of the problem before it gets worse.
- "Educate the managers. I can't emphasize that more. Make sure that the managers understand what the meal and rest break policy is." Jacuzzi advised. They should know the laws. They should not send messages that state or imply that breaks should be skipped.
- Make managers "own" the problem. If the manager is causing the problem, or if he or she should have known about it, it should affect their performance reviews or even their bonus or other discretionary income. "Once a manager has to own the problem, the problem typically goes away." Jacuzzi noted.
- Track and discipline violations. When employees don't follow your policy, it can be a disciplinary issue. As we've touched upon in other items in this list, making this a disciplinary issue can be a way to ensure you're doing everything you can to get the employees to take the breaks required by law.
- Use time-card disclaimers. You can have disclaimers on the time card that says the employee will be provided an uninterrupted meal period of at least 30 minutes and if the employee did not take that meal period, it was a voluntary waiver. It can also say that the employee is allowed two 10-minute rest breaks. By having this item signed by the employee on every time card, this provides an extra layer of protection—it is evidence the employee knew of their rights and voluntarily did not take them.
- Confirm work assignments and/or other policies do not preclude breaks. If you have any policy that would prevent an uninterrupted 30-minute meal break, that might be an example of evidence that you're not providing the meal break as required. Or if you have a manager who implies that breaks shouldn't be taken – that would be another example.
- Talk to the employees who miss breaks. The key here is to have a way to show the employees that they have a responsibility to take the breaks they've been provided—they cannot just not take it to try to get the premium pay, and doing so will result in disciplinary action. On the other hand, it also opens the door for the employee to explain that something prevented him or her from taking their break, which gives you the opportunity to remedy a problem. Last but not least, it also gives you evidence that you tried to comply (or that the employee signed a waiver saying they voluntarily didn't take the time) should a lawsuit or investigation occur.
The above information is excerpted from the webinar "Meal & Rest Breaks In California: Post-Brinker Exposure to Significant Monetary Liability Still High—What You Need to Know to Comply with State Law." To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.