A common wage and hour issue targeted by savvy Plaintiff’s employment attorneys is whether employers correctly and accurately provide meal and rest periods to their non exempt employees.  Under California law, an employee is entitled to an hour of pay for any missed or interrupted meal or rest period that an employee is not provided each day (for a maximum limit of two hours of penalty per day) going back over four years.  Additionally, if the meal and rest period violations occur across the board to all or many employees, such violations can serve as a basis for a Private Attorney General Act (“PAGA”) claim on behalf of all employees. These claims can amount to very large awards of penalties. Therefore, its critical for employers to understand their obligations and best practices when dealing with meal and rest periods. 

Meal Breaks

Under California wage and hour law, all non-exempt employees must receive a thirty (30) minute lunch or meal break if they work more than five (5) hours in a day. The meal break must be provided within the first 5 hours of the workday. If employees work not more than 6 hours in a shift they can waive the meal break.  For employees who work more than ten (10) hours in a day, they are entitled to another thirty (30) minute meal break but they can waive the meal break if they don’t work more than twelve (12) hours and have not already waived the first meal break. The meal break can be unpaid so long as the employee is permitted to leave the employer’s premises during the break. In all places of employment where employees are required to eat on the premises, a suitable place for that purpose must be designated. No definition for “suitable place” is provided in the California regulations.

An “on-duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when an on-the-job paid meal period is agreed to in writing by all parties. The written agreement must state that the employee may, in writing, revoke the agreement at any time.

Rest Breaks

In California, employers must provide their nonexempt employees at least ten (10) minutes of rest period for each four (4) hours, or a substantial fraction thereof.  This requirement is interpreted to mean that if an employee works at least three (3) and one half hours they must receive their rest break. Rest  breaks are to be taken in the middle of each four (4) hour period “as much as practicable.” Note that “as much as practicable” will likely only be met if it is a true burden to the employer and the employee is not prejudiced. This is a very high and difficult standard to meet.

Employers are only required to authorize and permit the employee to take their rest breaks. Thus, unlike meal breaks where employers need to have evidence that the employee took the meal break, for rest periods the employer must only show that the employee were allowed to take the rest break and they could have taken the rest break, but need not show that the break was actually taken.

General Considerations and Best Practices:

• Meal and rest breaks must be uninterrupted.  Thus, if the employee must answer a call or take direction from a supervisor or address a task during their break, even if they then return to their break when the non-break activity is completed, the break will be uninterrupted resulting in a violation.  
  
• Rest breaks are to be “net” 10 minutes. So,  if the employee must walk a few minutes to get to the break room, the break does not start until they get to the break room. In general it would be a good idea to provide the employee with a 5 minute extra amount of time (so a 15 minute rest break) to avoid any issue whether they did in fact get the net 10 minutes or not.  The same is true with meal periods.
  
• Rest periods are not required in order for an employee to use the toilet. Such time falls outside and in addition to the 10 minute rest break requirement.
  
• Be sure that rest breaks are spread out throughout the day. The second break should be taken later in the day after the meal break and during the second 4 hour period.  Breaks should not be stacked on top of one another such as adding the rest break immediately after the meal break. 
  
• Employees cannot work through their breaks and then leave early in the amount of time equal to their break times. They must actually get their breaks.
  
• If there is a known meal or rest period violation, pay the employee(s) the one hour penalty when it is discovered.  In the event of a later suit being filed, this will be evidence that you were compliant with your break policy and paid the penalty when there was a violation.  Your failure to do so, will be evidence that you did not provide the required breaks.
  
• Have your employees clock out  when taking their breaks, whether via time cards or a billing software. If you don’t have your employees enter their time daily then you should have your employees complete and sign a form that they submit weekly wherein they confirm they received their uninterrupted breaks. Being able to point to evidence, whether time records or a signed document showing that breaks were taken, is very important when facing claims of missed breaks. If you use time cards or billing software, be sure that it does not round time up or down in any fashion that is prejudicial to the employee.
  
• Confirm that you have correctly classified your employees as exempt and nonexempt. A mistake in classifying an employee as exempt when they were truly non exempt will result in meal and rest break penalties for every day that they worked without the appropriate break
  
• Make sure that employees and supervisors understand the required meal and breaks discussed above. You should post these requirements in your break room and include it in your employee handbook. 

Employers should take the time to review and audit their meal and rest break policies.  Should you have any questions about your organization’s break policies, contact our employment attorney Scott Liner at [email protected] or call 310.545.7700.