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6 FAQs on California’s Meal and Rest Break Rules

California’s meal and rest break rules are extremely technical and nuanced—and a failure to properly comply with them can result in penalties. Here are answers to six frequently asked questions (FAQs) regarding compliance with this intricate area of California labor and employment law.       

Q. Under California law, is there a penalty if meal breaks aren’t taken or are shorter than what’s mandated?

A. California law requires that nonexempt employees not work more than five hours without an uninterrupted, duty-free meal period of at least 30 minutes. Certain exceptions may apply, including where the employee works no more than six hours and voluntarily gives up the right to take a break. Employees who work more than 10 hours in a day are entitled to take a second meal break.

Under California law, when an employer fails to provide a proper meal break to a nonexempt employee, the premium (penalty) owed is one hour of extra pay for each work day that this occurs.

Q. To what extent should managers monitor employees’ meal breaks and ensure employees are off and on the clock at the proper times?

A. Monitoring nonexempt employees to ensure that they take proper meal breaks is a good practice. At a minimum, employers should consider publishing a meal break policy, which is most often provided in an employee handbook. The written policy should be carefully crafted to ensure that it complies with California requirements. Beyond that, it is a good practice for managers to encourage employees to follow the company policy, remind employees to take breaks, and counsel employees who fail to follow the policy.

Q. Are meal breaks more difficult to track for some workers (e.g., those who work off-site) than others?

A. California employers seeking to ensure that clock-in and clock-out times for meal breaks are being recorded on a daily basis may want to review their records in order to confirm that nonexempt employees are complying with company meal-break policies. On a daily basis, it is challenging to confirm that offsite workers are taking breaks. Some companies may decide to actively communicate with remote workers during the day to ensure that breaks occur as required.

Q. What if employees waive their meal breaks?

A. Waiver should happen only in limited circumstances. If employees will complete their work day in six hours, employees may waive their meal periods. If waiver is to occur, it may makes sense to require employees to waive meal periods in writing. In limited situations, an employee may be authorized to work an “on-duty meal period” when the nature of the employee’s duties prevent the employee from being relieved of all duty. Employers will want to tread carefully before engaging in this practice, because the applicable circumstances may be limited. In such cases, the California wage orders specify that the on-duty meal period agreement should be put into writing.

Q. What are examples of work whose duties are of a nature that would prevent workers from being relieved of all duties, such that an on-duty meal period agreement might be permitted?

A. Common examples may include a cement truck driver who is en route to a construction site, who cannot stop for 30 minutes without damaging the cement, or a security guard at a remote location who cannot be relieved of duty.

Q. Does it make sense to hold managers accountable for ensuring breaks are taken on time?

A. It is a good practice to educate managers regarding California’s peculiar break rules and to assign managers responsibility to ensure company break policies are followed. This may be one component of performance evaluations. Nonexempt employees themselves should also be held accountable for following the policy and encouraged to report to management or the human resources department any concerns that a supervisor is preventing employees from taking proper breaks.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Christopher W. Olmsted, Ogletree Deakins, Employment Law Compliance Attorney, Retaliation Claims Lawyer,
Shareholder

Christopher Olmsted is a shareholder in the firm's San Diego office.

Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters. Mr. Olmsted's employment law compliance and litigation experience includes: California FEHA and Title VII discrimination, harassment and retaliation claims; wrongful termination claims; wage and hour compliance and defense of claims and labor agency audits; California CFRA, federal FMLA and...

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