Mishandling of Employee Meal & Rest Breaks

Posted on: February 23, 2016

Authored by: Holden Law Group

The mishandling of meal and rest breaks continues to be a widespread problem. Despite the massive number of lawsuits and administrative claims over the past 15 years on the subject, many employers still have their heads in the sand. For those who don’t, a large number still fail to account for all the details required to achieve full compliance with the law. Unfortunately, full compliance is the only way to avoid the high cost of meal and rest break liability. Good intentions and best efforts are irrelevant. The liability is strict; meaning an employer either gets it right and has no liability or gets it wrong and has full liability. Full liability includes both the penalties and the automatic obligation to pay the employee’s lawyer! Moreover, even if the employer has employment practices liability insurance, it is unlikely to cover meal and rest break liability. So, the incentive to avoid any and all mishandling of breaks is high.

Basics

The basic rule for meal breaks: Employers may not work non-exempt employees for more than five hours without providing a meal period of not less than 30 minutes uninterrupted by any work. The meal period can be waived by mutual consent of the employer and the employee when the employee works no more than six hours in the day. Employers are not obligated to pay employees during the meal break.

The basic rule for rest breaks: Employers must authorize and permit non-exempt employees to take rest periods of not less than 10 minutes per every four hours of work or major fraction thereof. However, a rest break is not required for employees whose total daily work time is less than three and one-half hours. Employers must pay employees during the rest breaks.

A penalty of one hour of pay is assessed for each break that is not in full compliance. These are only the most basic rules for breaks. Other rules apply. Employers should review the applicable wage orders, the labor code and relevant court decisions governing their specific circumstances.

Common Problems

Failure to review and understand all the detailed rules on breaks and the unique way they may apply to an employer’s operation is a common mistake. Another common mistake is the failure to implement and communicate effective policies. Too often handbook policy statements create ambiguities between employer and employee responsibilities when it comes to taking breaks. While it is ultimately the employer’s responsibility to ensure legal compliance, liability can be reduced by policies that require employees to take some responsibility for compliance. Liability can be reduced further by implementing procedures for employee confirmation of compliance.

It is common for employers to have no record of employee breaks. This is particularly damaging in the case of meal periods. There is a presumption that an employee did not receive a meal period if the time records do not show the employee clocking out and clocking back in afterward. The best evidence to defend a meal or rest break claim is a clear, written (or electronic) record completed by the employee showing the breaks taken by the employee. Many employers have good record-keeping systems, but fail to adequately monitor the records. Employers should review the records each pay period to ensure not only that employees took the required breaks, but also that they took them on time. Frequently the records reveal meal periods taken after an employee has completed the fifth hour of work which is a violation. Another common violation revealed by the records is short meal breaks. If the employer provides a 30-minute meal period and an employee clocks back in early after a meal break, the records will show a short period which is a violation. Again, because the liability is strict, a meal period of twenty nine and one-half minutes is all it takes to create liability for the penalties and attorneys’ fees.