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ATTENTION EMPLOYERS: AVOID ADVERSE FINANCIAL CONSEQUENCES FOR VIOLATING CALIFORNIA LAW REQUIRING MEAL PERIODS AND REST BREAKS

June 12, 2013

In the 2012 case Brinker v. Superior Court (2012) 53 Cal.4th 1004, the California Supreme Court clarified employer obligations and employee rights regarding meal periods and rest breaks. An employer has fulfilled its obligations if the workplace complies with the following procedures.

MEAL PERIODS

An employee must be provided with an off-duty meal period of at least 30 minutes if the employee's shift is five hours or more. The meal period may be unpaid and must be provided no later than the end of the employee's fifth hour of work.


An employer fulfills its legal obligation if the meal period:

(1) Relieves an employee of all duty during the designated meal period; and

(2) Permits an unrestricted meal period of at least 30 minutes.


The employer is not required to police the workforce to ensure that employees do no work during this off-duty period.

When a an employee's work day is not more than six hours, the meal period may be waived by mutual consent of the employer and the employee.

Employees must be allowed to leave the premises during meal periods.

Advice to Employers: Do not discourage meal or lunch breaks, and do not require employees to remain on the premises. Your written employment policies or handbook should clearly state your company's meal period policies and those policies should be followed.

Further Advice: You should have adequate staffing or back-up plan to avoid requiring employees to work through meal periods and rest breaks.

Employer Caveat: Violations of meal periods and rest breaks are often brought as class actions on behalf of large numbers of employees.

SECOND MEAL PERIOD

An employer is required to provide a second meal period of at least 30 minutes when a shift is more than 10 hours. The second meal period may begin no later than the end of the employee's 10th hour of work.

The second meal period may be waived if all of the following conditions are met:

(1) The total hours worked on that day do not exceed 12 hours.
(2) The employee and employer mutually agree. The agreement must be in writing and must permit the employee to revoke the agreement.
(3) There was no waiver of the first meal period of the work day.

REST BREAKS

Employees must be given a ten-minute rest break for every four (4) hours of work, to be taken in the middle of each four-hour period as far as practicable. No rest break is required if the shift less than three and one-half (3 1/2) hours. Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.

Rest breaks must be paid and must be considered as time worked. Employers may require employees to remain on the premises during rest breaks.

Employer Advice: See advice above for meal periods.

Above are the employer obligations. Below are the financial consequences for violation of meal and rest break laws.

ADVERSE FINANCIAL CONSEQUENCES FOR FAILURE TO PROVIDE MEAL OR REST BREAKS

(1) Violation of meal period or rest breaks entitles an employee one additional hour of pay at the employee's regular rate of compensation for each day no meal or rest period is provided.

(2) If meal and rest periods are missed in a work day, the employer will be liable for two separate wage payments. The wage payment is due in the next pay period.

(3) Employees may seek back pay for meal and rest break violations for up to three (3) years!


Disclaimer: This Alert is designed to provide a summary of general information. It does not state the full extent of the law requiring meal and rest breaks; nor does it set forth exceptions to the law. Further, it does not offer solutions to individual problems. Employers with specific questions concerning meal and rest breaks should consult legal counsel.

Kenneth J. Sargoy, Esq. advises employers and provides representation in employment cases. Questions about meal and rest breaks, drafting or revising meal and rest period policies as well as other employment matters may be directed to Kenneth J. Sargoy, Esq., telephone 310-208-1003 or 310-472-7113 or to his e-mail, ken@sargoylaw.com. THIS EMPLOYMENT ALERT CONSTITUTES ADVERTISING UNDER APPLICABLE RULES OF PROFESSIONAL CONDUCT.

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