December 10, 2018
California employers are required by law to provide rest breaks and meal breaks for non-exempt employees, and the burden is on the employer to prove that the employees were given the required breaks.
On May 8, 2018, the federal district court for the central district of California awarded $97.2 million to a group of employees who had filed a class action lawsuit against Wells Fargo Bank. [Ibarra v. Wells Fargo Bank (C.D. Cal. 2018, No. 17-4344) ___ F.Supp.3d ___. These damages were awarded for denial of rest breaks by Wells Fargo. The federal court found that Wells Fargo had not provided rest breaks for its employees, and therefore owed them one additional hour of pay per workday for the number of shifts in excess of 3.5 hours during the relevant period. This amounted to 1,880,003 additional hours of pay owed to the employee class.
Below is a discussion of the duty owed by California employers to provide rest breaks and meal breaks, exceptions to that duty, and what employers can do to prevent or minimize their potential liability for violating that duty.
Note: California law on meal breaks and rest breaks applies only to non-exempt employees. [Cal. Code Regs., tit. 8, § 11040(1).] That means it does not apply to persons employed in administrative, executive, or professional capacities, nor does it apply to independent contractors. The meal break requirements also do not apply to union employees in certain industries whose collective bargaining agreements provide for meal breaks on a different schedule, including union employees in construction, truckers, security officers, utility workers, and in the motion picture industry.
Rest breaks
All employers are required to provide non-exempt employees with a 10-minute break for every 4 hours worked. The break is supposed to be given, insofar as practicable, in the middle of each work period. The employees must be paid for time spent on the required rest breaks. [Cal. Labor Code § 226.7(b); Cal. Code Regs., tit. 8, § 11040(12).]
Although not specifically required by law, it is a good idea to have employees document that they took their rest breaks. Also, the law requires that breast feeding employees must be allowed a “reasonable” amount of time to express breast milk for their infants. These breaks can run concurrently with regular rest breaks. If extra break time is taken for the purpose of expressing milk, however, the extra time may be unpaid. [Cal. Labor Code § 1030.]
Meal breaks
All employers are required to provide employees who work at least 5 hours with a 30-minute meal break. However, the meal break may be waived by the employee if the employee does not work more than 6 hours. Be sure to get any such waivers in writing, though. An additional 30-minute meal break is required for employees who work more than 10 hours. An employee may waive the second meal break if: (a) The employee did not waive the first meal break; and (b) 12 hours of work will finish the employee’s work for the day (except healthcare workers, who can waive the second meal break even when the work shift is longer than 12 hours). [Cal. Labor Code § 512(a); Gerard v. Orange Coast Memorial Medical Center (Dec. 10, 2018, S241655) ___ Cal.5th ___.]
Employers are not required to pay employees for the time they spend on required meal breaks. Employees must not be required to work during meal breaks or rest breaks, unless an employee is having an “on duty” meal break; the employer must pay the employee the regular wage during an “on duty” meal break. An “on duty” meal break is permitted only when the nature of the work prevents an employee from being relieved of all duty to take meals, and even then only if this on-the-job paid meal period is agreed to by the parties in a written agreement revocable by the employee. [Cal. Labor Code § 512; Cal. Code Regs., tit. 8, § 11040(11).]
Unless an employee is an exempt employee, or is being paid for time spent on a meal break, an employer should require the employee to clock out at the start of the meal break, and clock back in once the meal break is over. Also, pursuant to California’s Industrial Welfare Commission Wage Orders, employers must provide a “suitable place” to take their meal breaks if they are required to eat on the premises.
Penalties for Violations
Penalties for failing to provide meal breaks and rest breaks can be substantial. California Labor Code section 226.7 provides that if an employer fails to provide an employee either a meal period or a rest period as required by law, the employer “shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” As shown in the recent example at the beginning of this article, those additional hours of pay can quickly add up to millions of dollars.
What Employers Can Do to Protect Themselves
First, make sure all employee manuals, handbooks and procedures spell out that all employees are required to take meal breaks and rest breaks. Second, instruct your managers and supervisors to make sure their subordinates are taking meal breaks and rest breaks. Third, make sure all non-exempt employees clock out at the beginning of meal breaks, and clock back in when the meal break ends. Fourth, if possible, have employees document that they are taking required rest breaks (for example, have employees sign a monthly acknowledgment to this effect.) Fifth, establish a policy whereby employees may be penalized if they do not take their required meal or rest breaks.
Finally, call an employment attorney if you have any questions regarding this area of the law.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.