By far, the majority of questions we receive from Humboldt County employers concern meal and rest period requirements. If you haven’t heard, California employers and employees alike (as well as the Division of Labor Standards Enforcement (“DLSE”) await a decision by the California Supreme Court in the Brinker Restaurant Corporation v. Superior Court case. Until then, in California, the Industrial Welfare Commission (“IWC”) Wage Orders require that employers authorize and permit nonexempt employees to take a rest period that should be taken in the middle of each work period. You should always check the Wage Orders for your employees’ industries because more than one Wage Order may apply to a single employer, particularly those who employ in different job functions.
Generally, the rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. The DLSE considers anything more than two (2) hours to be a “major fraction” thereof. (This also may be decided in the Brinker case.) However, a rest period is not required for employees whose total daily work time is less than three and one-half hours. By law, the rest period is counted as time worked and therefore, the employer must pay for them. The caveat is that rest periods differ with Wage Orders, so again, it is critical to be sure that you are operating under the appropriate Wage Order for the employee’s industry. For employees in certain on-site occupations, like construction, drilling, logging and mining, employers may stagger the rest periods to avoid interruption in work flow, and additional exceptions apply.
With respect to meal periods, generally employees who work more than five hour shifts are entitled to a 30-minute meal period, which need not be paid. The exception is that if the total work period per day of the employee is no more than six hours the meal period may be waived by mutual consent. The consent should be in writing. Unless the employee is relieved of all duty during his or her 30 minute meal period, the meal period should be considered an “on duty” meal period that is counted as hours worked and must be compensated at the regular rate of pay. Employers who can show that the nature of an employee’s work prevents the employee from being relieved of all duty should consider a written agreement regarding an on-duty meal period. There are certain legal requirements to make such agreements valid, so please have yours reviewed or drafted by an attorney.
If an employer fail to provide an employee a meal or rest period in accordance with an applicable IWC Order, the employer will have to pay the employee one additional hour of pay, at the employee’s regular rate of pay, for each workday that the meal or rest period is not provided. And, in a proceeding before the DLSE, the penalties for missed meal and rest periods add up relatively quickly—particularly where multiple employees are concerned.
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Tags: Amelia F. Burroughs, Employment Law