Meal and Rest Break Compliance for California Employers

Meal and Rest Break Compliance for California Employers: Best Practices David Van Pelt Kate Visosky April 17, 2013 © Sheppard, Mullin, Richter & Hampton LLP 2013

Meal and Rest Breaks in California § How do you ensure that your company is in compliance? § How do you avoid taking unnecessary steps? 2

What is the Law? § Meal Periods – The California Labor Code and Wage Orders require that an employer may not “employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. ” 3

What is the Law? (Cont. ) § Exception 1: When an employee completes his/her shift in six (6) hours or less, the meal period can be waived by mutual agreement. – Does the agreement have to be in writing? • Not required by law, but best practice says yes. 4

What is the Law? (Cont. ) § Exception 2: An “on-duty” meal period is permitted when “the nature of the work” prevents an employee from being relieved of all duty and when the parties agree in writing to an on-the-job meal period. – “On-duty” meal period involves an employee working during the meal period. – The employee must be paid during an “on-duty” meal period. – The “nature of the work” standard is tough to meet. 5

What is the Law? (Cont. ) § Rest Periods – Every employer shall “authorize and permit “ nonexempt employees to take paid rest periods “at the rate of ten (10) minutes” per “four (4) hours or major fraction thereof” worked. – A rest period need not be provided if the work period is less than 3. 5 hours. 6

What is the Penalty? § For each work day that a meal or rest period is required but not provided, one hour of pay is due to the employee. § Therefore, an employer can be required to give an employee an extra 2 hours pay per day if the meal period and rest periods are not properly provided. 7

What the Brinker Case Did Not Hold § Brinker did not excuse companies from responsibility for meal or rest periods. § Brinker did not leave the timing of meal/rest periods up to the employee. 8

What the Brinker Case Did Hold § To “provide” a meal period, employers are required to make sure that employees… – Are relieved of “all duties” for at least 30 minutes; and – Are free to leave the workplace if they wish. § The first meal period must be made available after no more than 5 hours of work; the second, after no more than 10 hours of work. § An employer is not liable if an employee is “relieved of all duty” but chooses to work. 9

What Brinker Did Hold (Cont. ) § If the employer knows or reasonably should know that an employee performs work during the meal period, the employee must be paid for the time worked. § However, the employee is not necessarily entitled to the meal period penalty in that case. 10

What Brinker Did Hold (Cont. ) § A ten-minute paid rest break must be provided for every “major fraction” of four hours after working at least 3. 5 hours: – One 10 -minute break from 3. 5 -6 hours. – Another break for shifts of 6 -10 hours. – Another break for shifts between 10 -14 hours. § Employers do not have to provide a rest break before the meal period, although it is best practice to space out the rest breaks throughout the workday. 11

Issues Left Unclear by Brinker § Question: Can an employee claim a violation where his workload left him no choice but to perform work during the meal/rest breaks? § Answer: Yes, but it is not clear how busy an employee must be to make that claim valid. § Result: An employer should not create impediments that prevent employees from taking uninterrupted breaks. 12

Suggested Best Practices § The Policy - Meal Periods – Important to have a written policy that provides that: • An uninterrupted meal period of at least 30 minutes will be provided to each employee; and • The first meal break will be provided before the end of the fifth hour of work; and • Employees are relieved of work duties and can leave the premises during the meal period. 13

Suggested Best Practices (Cont. ) § The Policy – Rest Breaks – Important to have a written policy that: • Makes clear that employees are provided a rest break for every four hours or “major fraction” thereof -– 3. 5 to 6 hours of work, 1 rest period; – After 6 hours of work, 2 rest period; – After 10 hours of work, 3 rest periods. • Employees are relieved of work duties during the rest period. 14

Suggested Best Practices: The Policy § The policy should be acknowledged in writing by employees. § Reminders of the policy should be circulated periodically to employees. 15

Suggested Best Practices: Timekeeping § Meal Periods – The time recording system should record meal periods. – The time recording system should not automatically record a 30 -minute meal period, regardless of whether it is taken. 16

Best Practices: Timekeeping § Rest Breaks – Should employees clock in and out for rest periods? • Probably not. • Because it is paid, it is too easy to forget and too timeconsuming to enforce. 17

Best Practices § Should employees acknowledge in writing that their hours are correct when they get paid? – Pros: • It can provide useful evidence to respond to claims of “off-the-clock” work or missed meal periods. – Cons: • Employees can claim that they were coerced. • If the practice is not consistently followed then it is of little use. 18

Best Practices – The Penalty § Should employers self-impose a meal penalty when the meal period is missed or less than 30 minutes? – Pros: • May limit the likelihood of a claim. • Limits potential damages if an employee brings a claim. – Cons: • Automatic penalty is unnecessary in cases where the employee was provided a meal period but worked anyway. 19

Best Practices – Training & Discipline § Managers: – Important to train them on meal period compliance, necessity of providing meal & rest periods within an acceptable timeframe. § Employees: – Discipline employees who fail to record meal periods, or clock out for a meal period but continue to work. 20

Best Practices – Schedules § Consider building meal/rest periods into employee schedules. – Easier to track compliance; but – May be impractical. § Managers must be clear about timing of meal/rest periods if they schedule them. 21

Thank You § David Van Pelt – (310) 228 -3734 – dvanpelt@sheppardmullin. com § Kate Visosky – (310) 228 -3746 – kvisosky@sheppardmullin. com 22