ca special report jackson lewis llp · p a g e | 1 california meal period and rest break rules...

P A G E | 0

CA SUMMARY OF MEAL PERIOD AND REAST BREAK RULES SPECIAL REPORT Jackson Lewis LLP

P A G E | 1

CALIFORNIA MEAL PERIOD AND REST BREAK RULES SPECIAL REPORT JACKSON LEWIS LLP

ABOUT JACKSON LEWIS

SERVING THE DIVERSE NEEDS OF MANAGEMENT

Founded in 1958, Jackson Lewis, dedicated to representing management exclusively in workplace law, is one of the fastest growing workplace law firms in the U.S., with 700+ attorneys practicing in 49 locations nationwide. We have a wide-range of specialized practice areas, including: Affirmative Action and OFCCP Planning and Counseling; Disability, Leave and Health Management; Employee Benefits, including Complex ERISA Litigation and Executive Compensation; Global Immigration; Labor, including Preventive Practices; Litigation, including Class Actions, Complex Litigation and e-Discovery; Non-Competes and Protection Against Unfair Competition; Wage and Hour Compliance; Workplace Safety Compliance and Corporate Diversity Counseling. In addition, Jackson Lewis provides advice nationally in other workplace law areas, including: Reductions in Force, WARN Act; Corporate Governance and Internal Investigations; Drug Testing and Substance Abuse Management; International Employment Issues; Management Education, including e-Based Training; Alternative Dispute Resolution; Public Sector Issues; Government Relations; Collegiate and Professional Sports; and Privacy, Social Media and Information Management. For the 11th consecutive year, Jackson Lewis has been recognized for delivering client service excellence to the world’s largest corporations, once again earning a spot on the BTI Client Service A-Team. Jackson Lewis has also been recognized by in-house counsel of Fortune 1000 companies after a comprehensive survey as “the single highest-ranked firm clients want by their side in employment battles.” In addition, Jackson Lewis is ranked in the First Tier nationally in the category of Labor and Employment Litigation, as well as in both Employment Law and Labor Law on behalf of Management in the U.S. News – Best Lawyers® “Best Law Firms,” and is recognized by Chambers and Legal 500. As an “AmLaw 100” firm, Jackson Lewis has one of the most active employment litigation practices in the United States, with a current caseload of over 5000 litigations and approximately 300 class actions. And finally, Jackson Lewis is a charter member of L & E Global Employers’ Counsel Worldwide, an alliance currently of 12 workplace law firms in 12 countries.

Additional information about Jackson Lewis can be found at www.jacksonlewis.com.

This Special Report is designed to give general and timely information on the subjects covered. It is not intended as advice or assistance with respect to individual problems. It is provided with the understanding that the publisher, editor or authors are not engaged in rendering legal or other professional services. Readers should consult competent counsel or other professional services of their own choosing as to how the

matters discussed relate to their own affairs or to resolve specific problems or questions. This Special Report may be considered attorney

advertising in some states. Furthermore, prior results do not guarantee a similar outcome. Copyright: © 2012 Jackson Lewis LLP

http://www.jacksonlewis.com/

P A G E | 2


General Summary of California Rest Break and Meal Period Rules

California law concerning wages, hours and working conditions is governed by the California Labor Code and 17 industrial and occupational regulations promulgated by the Industrial Welfare Commission (“IWC”) known as “Wage Orders.” The Legislature has authorized the IWC to issue these Orders, which apply to specific industries or occupations. California employers must consider both the Labor Code and the applicable Wage Order when determining which wage and hour rules they must follow. The Division of Labor Standards Enforcement (“DLSE”) is the California-equivalent to the U.S. Department of Labor. The DLSE and the Office of the Labor Commissioner were established to adjudicate wage claims, investigate discrimination and public works complaints, and enforce Labor Code statutes and IWC orders. The DLSE has stated enforcement positions on many wage and hour issues, including meal periods and rest breaks. This reference document provides a general summary of California’s requirements regarding rest breaks, meal periods and lactation accommodation breaks pursuant to the Labor Code, most Wage Orders and the California Supreme Court’s April 11, 2012 decision in the matter of Brinker Restaurant Corporation, et al. v. The Superior Court of San Diego County, which, among other things, addresses issues related to meal periods and rest breaks.1 Given the intricacies involved in the California break laws, employers should address specific scenarios with counsel.

1The rules summarized herein are generally the same for most Wage Orders; while we note some exceptions, this summary does not describe all exceptions or

potential differences.

P A G E | 3


Rest Break Meal Period Lactation

Accommodation

Basic Standard

Employer must authorize and permit uninterrupted 10 minute rest break for each 4 hours worked or major fraction thereof; as practicable, in middle of each work period. Not required for employees whose total daily work time is less than 3 and ½ hours.

Employer must relieve employees of all duty, relinquish control over their activities, and permit them a reasonable opportunity to take an uninterrupted 30 minute meal period after no more than 5 hours of work, except when workday will be completed in 6 hours or less and there is mutual employer/employee consent to waive meal period. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended. A second meal period of not less than 30 minutes is required to be provided if an employee works more than 10 hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended. Qualifying and approved on-duty meal periods are counted as time worked and permitted without paying premium pay only when the nature of work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. California does not clearly define the types of jobs which would qualify for an “on-duty” meal period. For this reason, we recommend consulting counsel prior to implementing an “on- duty” meal period for any category of employees.

Employers must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee.

Length of Time

Net 10 uninterrupted minutes for each 4 hours worked “or major fraction thereof.” “Major fraction”

Net 30 uninterrupted minutes

A reasonable amount of time. Employers should

P A G E | 4



Accommodation

means a fraction greater than one half, that is, any amount of time in excess of 2 hours. The rest time that must be permitted is the number of hours worked divided by 4, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes. See summary chart below. According to the DLSE, "net" 10 minutes means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest.

seek legal advice before making a determination regarding whether the amount of time requested is unreasonable.

Paid or Unpaid

Paid

Unpaid (unless otherwise provided for by policy or collective bargaining agreement)

If the break time does not run concurrently with the required rest break, it need not be paid.

Timing

Must fall in the middle of the work period insofar as practicable. Employers must make a good faith

The first meal period must be provided by the end of the fifth hour worked, unless one of the conditions for waiver applies. If an employee is eligible for a second meal period, it must be provided by

The break time shall, if possible, run concurrently with any break

P A G E | 5



Accommodation

effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. Employers should seek legal advice before making a determination as to whether practical considerations render such timing infeasible. In the context of an 8 hour shift, as a general matter, one rest break should fall on either side of the meal break. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule. However, it is unclear what factors render such scheduling “impracticable.” Employers should seek legal advice before making a determination as to whether particular factors render such scheduling impractical.

the end of the tenth hour worked, unless one of the conditions for waiver applies.

time already provided to the employee.

Premium for failure to comply

If an employer fails to comply with rest break requirements in accordance with the applicable IWC Order, the employer must pay the employee one hour of pay at the

If an employer fails to comply with the meal period requirements in accordance with the applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7.

Not applicable.

P A G E | 6



Accommodation

employee’s regular rate of compensation for each workday that the rest break is not provided. IWC Orders and Labor Code Section 226.7. The DLSE has interpreted “regular rate of compensation” to mean “regular rate of pay.” The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage. This additional hour is not counted as hours worked for purposes of overtime calculations.

The DLSE has interpreted “regular rate of compensation” to mean “regular rate of pay.” The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings and commissions. In no case may the regular rate of pay be less than the applicable minimum wage. This additional hour is not counted as hours worked for purposes of overtime calculations.

Coverage

Uniform application to industries and occupations under 15 IWC Wage Orders, including agriculture and household employment. Excludes professional actors, sheepherders under Agricultural Occupations Order, and personal attendants under Household

Uniform application to industries under 14 Wage Orders, including agriculture and private household employment. It is recommended employers seek legal advice regarding identifying and interpreting the Wage Order applicable to their organization.

All employers, including the state and any political subdivision. Labor Code Section 1030.

P A G E | 7



Accommodation

Occupations Order. For rules regarding such circumstances, see the applicable Wage Order. It is recommended employers seek legal advice regarding identifying and interpreting the Wage Order applicable to their organization.

Limited Exceptions

Work Period Less than 3.5 Hours Not required for employees whose total daily work time is less than 3.5 hours. Health and Welfare Under all Wage Orders, except for private household employment, DLSE may grant exemption upon employer application on the basis of undue hardship, if exemption would not materially affect welfare or comfort of employees.

Motion Picture Industry Additional interim rest periods required in motion picture industry during actual rehearsal or shooting for swimmers, dancers, skaters or other performers engaged in strenuous physical activity.

On-Duty Meal Periods – Limited Circumstances 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, by written agreement between the employer and employee, an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 –15, Section 11; Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. The DLSE has provided some guidance with regard to the type of work which prevents an employee from being relieved of all duty. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Unless an employee approved for an on-duty meal period is relieved of all duty during his or her 30 minute meal period, the meal period shall be considered an "on-duty" meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay.

An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer. The Legislature provided no guidance as to the meaning of the phrase “seriously disrupt.” Therefore, before denying any employee lactation

P A G E | 8



Accommodation

Prevention of Heat Illness Employers of outside workers have additional requirements related to the prevention of heat illness. Consult legal counsel regarding the specific requirements.

Other Other limited exceptions may apply to certain industries. Consult with legal counsel regarding rules for group homes, residential care facilities, commercial fishing boats, and persons employed in the non-site occupations of construction, drilling, logging and mining.

It is recommended employers seek legal advice regarding identifying and interpreting the Wage Order applicable to their organization.

It is recommended employers seek legal advice regarding whether a position qualifies for a lawful “on-duty” meal period. Health and Welfare The IWC may adopt working condition orders permitting a meal period to start after 6 hours of work if the Commission determines that the order is consistent with the health and welfare of the affected employees. Employers seeking working condition orders should seek legal advice. Motion Picture Industry Employees in the motion picture industry may work no longer than 6 hours without a meal period of not less than 30 minutes, nor more than 1 hour. And a subsequent meal period must be called not later than 6 hours after the termination of the preceding meal period. IWC Order 12-2001, Section 11(A).

It is recommended employers seek legal advice regarding identifying and interpreting the Wage Order applicable to their organization.

accommodation, employers are advised to consult with counsel.

P A G E | 9



Accommodation

Waivers

Not applicable When the workday will be completed in 6 hours or less, the employer and employee may mutually consent to waive a meal period. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended.

When the total hours worked is no more than 12 hours in a work day, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512.

Not applicable

Location

Employers can require employees to remain at the worksite during the rest break.

Employees must be free to leave the work site for the entirety of the uninterrupted 30 minute meal period. (Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers.) If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid as regular hours worked. This is true even where the employee is relieved of all work duties during the meal period. In addition, the employer must pay one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 (see above regarding premium pay). In all places where employees are required to eat on the premises, a suitable place for that purpose must be designated. This requirement does not, however, apply to employees covered by IWC Order 16-2001, on-site occupations in the construction, drilling, logging and mining industries. For employees covered by IWC Order 16-2001, the employer must provide an adequate supply of potable water, soap or other suitable

The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the

P A G E | 10



Accommodation

cleansing agent, and single use towels for hand washing. Under all of the IWC Orders except Orders 12, 14, 15 and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink. Under IWC Order 12-2001 for employees in the motion picture industry, hot meals and hot drinks must be provided for employees who are required to work after midnight, except off-production employees regularly scheduled to work after midnight.

employee normally works if it otherwise meets the requirements of the applicable Labor Code section.

Other Rules

Not applicable

Under all of the IWC Orders except Orders 12, 14, 15, and 16-2001, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities must be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place must be provided in which to consume such food or drink. Under IWC Order 12-2001 for employees in the motion picture industry, hot meals and hot drinks must be provided for employees who are required to work after midnight, except off-production employees regularly scheduled to work after midnight.

Not applicable

P A G E | 11


Summary of Number of Meal Periods and Rest Breaks

Hours of Work Meal Periods and Rest Breaks

0 to 3.4 (less than 3.5) 0

3.5 to 4.0 One 10 minute paid rest break

More than 4.0 (i.e. 4.1) up to 5.0 One 10 minute paid rest break

More than 5.0 (i.e. 5.1) up to 6.0 One 10 minute paid rest break and one 30 minute unpaid meal period (unless first meal period is mutually waived)

More than 6.0 (i.e. 6.1) up to 10.0 Two 10 minute paid rest breaks and one 30 minute unpaid meal period

More than 10.0 (i.e. 10.1) up to 12.0 Three 10 minute paid rest breaks and two 30 minute unpaid meal periods (unless second meal period is mutually waived)

More than 12.0 (i.e. 12.1) up to 14.0 Three 10 minute paid rest breaks and two 30 minute unpaid meal periods

P A G E | 12


Frequently Asked Questions Regarding Rest Breaks and Meal Periods

REST BREAKS

Q. What are the basic requirements for rest breaks under California law? A. Employers covered by the rest break provisions of the IWC Wage Orders must authorize and permit employees to take an uninterrupted net 10 minute paid rest break for every 4 hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. “Major fraction” means a fraction greater than one half, that is, any amount of time in excess of 2 hours. The rest time that must be permitted is the number of hours worked divided by 4, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes. See summary chart above. According to the DLSE, "net" 10 minutes means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. An employer shall pay the employee one hour of pay at the employee’s regular rate of compensation for each workday that the employer does not comply with rest break requirements. The DLSE has interpreted “regular rate of compensation” to mean “regular rate of pay.” The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings and commissions. In no case may the regular rate of pay be less than the applicable minimum wage. An employer is not required to authorize or permit a rest break for employees whose total daily work time is less than 3.5 hours. Q. Are employers required to keep a record of when an employee takes rest breaks and for how long? A. No. However, it is the employer’s burden to demonstrate that it authorized and permitted eligible employees to take entitled rest breaks. It is recommended that employers maintain signed acknowledgments of lawful rest break policies which notify employees of their entitlement to rest breaks. Employers should seek legal advice regarding best practices for their organization, including what policies to implement and records to maintain, if any, regarding rest breaks.

P A G E | 13


Q. If an employee voluntarily elects to forgo a rest break to which he or she is entitled, is the employer required to prove the employee’s election was voluntary?

A. The California Supreme Court did not specifically address this issue in the Brinker decision. It is recommended that employers maintain signed acknowledgments of lawful rest break policies which notify employees of their entitlement to rest breaks. Employers should seek legal advice regarding best practices for their organization, including what policies to implement and records to maintain, if any, regarding rest breaks. Q. Must the rest breaks always be in the middle of each 4 hour work period? A. Rest breaks must be permitted as close to the middle of the 4 hour work period as is practicable. The California Supreme Court has stated that employers have a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but employers may deviate from that preferred course “where practical considerations render it infeasible.” The Court stated that if the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period. The convenience of customers or the employer is not a valid excuse for preventing the break from occurring as close to the middle of the 4 hour period as possible. The Court has not expressed a view as to what type of practical considerations may render scheduling of breaks in the middle of each 4 hour work period “infeasible.” It is recommended that employers authorize and permit rest breaks in the middle of the 4 hour work period and seek legal advice before deviating from the preferred course. In the context of an 8 hour shift, as a general matter, one rest break should fall on either side of the meal break. Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule. The Court has not specifically defined what circumstances would render such scheduling impracticable. Accordingly, employers should seek legal advice before making a determination as to whether practical considerations render authorizing a rest break on either side of meal period infeasible. Q. Can the first rest break take place after the meal period? A. Yes. There is no requirement that the rest break must be provided before any meal period. However, see requirements in the above FAQ regarding the timing of rest breaks.

P A G E | 14


Q. Is it permissible for an employee to work through both rest breaks so they can leave their job 20 minutes early? A. No. If an employee voluntarily elects to work through rest breaks, the employee is not entitled to leave work early or arrive late. Q. Can an employer require an employee to stay on the work premises during a rest break? A. Yes. Since the employee is being compensated for the time of the rest break, the employer can require the employee to remain on its premises. And, in most situations, the employer is required to provide suitable resting facilities for employees during working hours in an area separate from the toilet rooms. Q. Are employees entitled to additional rest breaks if they smoke? A. No. The number of rest breaks which an employer must authorize and permit is based on the total hours worked daily, and only one 10 minute rest break need be authorized and permitted for every 4 hours of work or major fraction thereof. Q. When an employee uses the toilet facilities during a work period, does that count toward the required 10 minute rest break? A. No. The 10 minute rest break is not designed to be exclusively for use of toilet facilities as evidenced by the fact that the IWC requires suitable resting facilities be in an area “separate from toilet rooms.” The intent of the IWC regarding rest breaks is clear: the rest break is not to be confused with or limited to breaks taken by employees to use toilet facilities. This conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms And Resting Facilities, which requires that “Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.” Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest breaks as required by the IWC Wage Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station, nor does it indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.

P A G E | 15


MEAL PERIODS

Q. What are the basic requirements for meal periods under California law? A. Employers covered by the meal period provisions of the IWC Wage Orders must relieve employees of all duty, relinquish control over their activities and permit them a reasonable opportunity to take an uninterrupted 30 minute meal period after no more than 5 hours of work, except when workday will be completed in 6 hours or less and there is mutual employer/employee consent to waive meal period. 2 There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended. A second uninterrupted meal period of not less than 30 minutes is required to be provided if an employee works more than 10 hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended. If an employer fails to comply with the meal period requirements in accordance with an applicable IWC Wage Order, the employer must pay one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7. The DLSE has interpreted “regular rate of compensation” to mean “regular rate of pay.” The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings and commissions. In no case may the regular rate of pay be less than the applicable minimum wage. This additional hour is not counted as hours worked for purposes of overtime calculations. Work of Up to 6 Hours

Employees are entitled to an uninterrupted meal period of at least 30 minutes, but employees may voluntarily agree with the employer to waive their right to a meal period, provided they work no more than 6 hours in a day. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is strongly recommended.

2 Exceptions to the basic requirements exist for employees in certain positions or industries, including healthcare employees, employees in group home

settings, the motion picture industry, the manufacturing industry, union employees covered under Wage Order 16 and the baking industry.

P A G E | 16


Work Exceeding 6 Hours

Employees are entitled to an uninterrupted meal period of at least 30 minutes. In very limited circumstances, including express authorization by at least one Wage Order, an employee may enter into a voluntary written agreement with the employer for an on-duty meal period that is counted as time worked. See below requirements regarding what constitutes a lawful “on-duty” meal period. Employers should seek legal advice before determining whether an applicable Wage Order authorizes an on-duty meal period, and whether a particular position qualifies for an on-duty meal period. Work Exceeding 10 Hours

Employees working a shift exceeding 10 hours in a day are entitled to an uninterrupted second meal period of at least 30 minutes. Employees working 12 or fewer hours may agree with the employer to waive the second meal period only if the first meal period was not waived. This allows employees who work shifts of 10-12 hours to agree to only one meal period, rather than the usual two meal periods that would unnecessarily prolong their total work schedule. There is no requirement this agreement be in writing, however, confirming this agreement in writing prior to each voluntary waiver is recommended. “On-Duty” Meal Periods

An "on-duty" meal period shall be permitted only when: expressly provided by the employer’s particular Wage Order; the nature of the work prevents an employee from being relieved of all duty; and the employer and employee agree by written agreement. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 –15, Section 11; Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one and difficult to meet. The DLSE has provided some guidance with regard to the type of work which prevents an employee from being relieved of all duty. Where permitted, an employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Unless an employee approved for an on-duty meal period is relieved of all duty during his or her 30 minute meal period, the meal period shall be considered an "on-duty" meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. It is recommended that employers seek legal advice regarding whether a position qualifies for a lawful “on-duty” meal period.

P A G E | 17


Q. Are employers required to “ensure” that employees take their entitled meal periods? A. The California Supreme Court has ruled that the employer’s obligation “is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” The Court has further stated as follows:

Employers must not impede or discourage employees from using an uninterrupted 30 minutes for the employees’ own purposes.

An employee choosing to work after being truly relieved of all duty must receive pay for the time worked, but is not entitled to the one hour of premium pay.

The Court also cautioned that “if an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided,” and “the burden is on the employer, as the party asserting the waiver, to plead and prove it.” It is recommended that covered employers establish and enforce policies and practices regarding employees’ entitlement to meal periods and how employees should be relieved for meal periods. Q. Are employers required to maintain records to establish an employee voluntarily waived his or her entitled meal periods? A. The California Supreme Court has stated that “if an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided;” and “the burden is on the employer, as the party asserting the waiver, to plead and prove it.” The Court did not provide guidance regarding what constitutes sufficient proof that a meal period was provided. It is recommended that employers seek legal advice regarding whether or not to maintain records to establish voluntarily waived meal periods, and, if so, what type of records. Q. If an employer is aware an employee voluntarily waived a meal period, must the employer pay the one hour of premium pay? A. No. However, the employer is obligated to maintain an accurate record of all hours worked. Therefore, if an employee does voluntarily waive the right to take an earned meal period, he or she must record the time as hours worked (in most cases this means not clocking out). Employers should maintain and enforce strict policies prohibiting work off-the-clock.

P A G E | 18


Q. Can an employee voluntarily waive a meal period and then demand a penalty? A. No, if the waiver is truly voluntary. The California Supreme Court has stated that “employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.” However, the Court warned that an employer “may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” The Court also warned that an “employer’s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks” is not lawful. Q. If an employee voluntarily decides to waive his or her meal period, or defer it until after his or her fifth hour of work to

keep working with a customer in the hope of receiving a commission on a sale or tip, does an employer owe the employee premium pay?

A. It depends on the specific circumstances. Such inquiries are highly fact specific. The California Supreme Court has warned that an “employer’s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks” is not lawful. If the employer maintains a lawful policy of providing timely meal breaks, appropriately staffs the department with workers who are able to relieve workers in time for breaks (or otherwise provides for relief for breaks such as authorization to close a register, store), and the employee’s decision to waive his or her entitlement to a meal period is truly voluntary (i.e. the employer has not exerted coercion against the taking of, creating incentives to forgo, or otherwise encouraged the skipping of legally protected breaks), then no premium is owed. Q. If an employee waives his or her meal period, or defers it until after his or her fifth hour of work because the employee

perceives his or her department is too busy to keep up with customer demand in the parameters dictated by employer with regard to customer service, does an employer owe the employee premium pay?

A. It depends on the specific circumstances. Such inquiries are highly fact specific. The California Supreme Court has warned that an “employer’s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks” is not lawful. It is strongly recommended that where applicable, employers establish and enforce policies and practices regarding how employees should be relieved for meal periods. If there is not appropriate staffing such that an employee can be relieved for the meal period and therefore the employee does not take an entitled meal period, it is likely a Court would determine that the employer did not comply with the requirements to relieve the worker of all duty. Employers should seek legal counsel regarding how to address this issue with regard to their particular work force.

P A G E | 19


Q. If an employee chooses to work all or part of a meal period after being truly relieved of all duty, must the employee be paid for the meal period?

A. Yes. An employee choosing to work after being truly relieved of all duty must receive pay for the time worked, but is not entitled to the one hour of premium pay. However, depending on total hours worked for the day, this may mean the employee is entitled to overtime. An employer can have a policy requiring an employee take their meal period in order to avoid overtime. Q. Is it permissible for an employee to choose to work through a meal period so she or she can leave work 30 minutes early? A. No, working through a meal period does not entitle an employee to leave work early prior to the scheduled quitting time. However, the employee could leave early with permission from his or her supervisor and not be subject to discipline. We recommend that employers do not establish an ongoing policy or practice of shortening shifts for employees who elect to forgo their meal periods. In order for an “on-duty” meal period to be permitted under most of the IWC Wage Orders, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time. See above regarding the limited circumstances where an on-duty meal period is permitted for certain positions. Q. Can an employer require that an employee stay on its premises during a meal period? A. Yes. The employer can require an employee to remain on its premises during meal periods, even if employee is relieved of all work duties. However, if that occurs, the employee is being denied time for his or her own purposes and, in effect, remains under the employer's control; thus, the meal period must be paid in addition to one hour of premium pay at the employee’s regular rate of compensation. See table above regarding premium pay. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to most of the IWC Wage Orders, if employees are required to eat on the premises, a suitable place for that purpose must be designated. “Suitable” means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink. Employers should seek legal advice prior to requiring an employee to stay on premises during a meal period.

P A G E | 20


Q. How long is an employer required to maintain records of meal periods? A. Employers are required to maintain accurate time records, including when meal periods were taken, for three years. We recommend, however, retaining records for four years because an employee may assert a legal claim for entitlement as far back as four years.

Jamerson C. Allen

199 Fremont Street, 10th

Floor San Francisco, CA 94105 • (415) 536-6341 [email protected]

JoAnna L. Brooks



Mia Farber

725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017 • (213) 630-8284 [email protected]

Cynthia L. Filla 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017 • (213) 630-8269 [email protected]

Samantha N. Hoffman

5000 Birch Street, Suite 5000 Newport Beach, CA 92660 • (949) 885-1364 [email protected]

Joel P. Kelly


Scott C. Lacunza

5000 Birch Street, Suite 5000 Newport Beach, CA 92660 • (949) 885-1363 [email protected]

Cary G. Palmer

801 K Street, Suite 2300 Sacramento, CA 95814 • (916) 288-3007 [email protected]

Robert M. Pattison



Leonora “Lenny” Schloss


Paul F. Sorrentino

225 Broadway, Suite 200 San Diego, CA 92101 • (619) 573-4895 [email protected]

P A G E | 21


http://www.jacksonlewis.com

ca special report jackson lewis llp · p a g e | 1 california meal period and rest break rules...

Documents