Episode 112: No Room for Error on Meal, Rest Breaks

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers Executive Vice president and General Counsel. And back on the podcast with us today is Jennifer Shaw of the Shaw Law Group. Welcome, Jen.

Hi, Erica. I'm so happy to be here. Thank you.

It's always a joy to have you. And it's so much fun to talk about the different topics that I get to talk about, talk to you about. And today it is meal and rest breaks.

Nothing besides Covid.

Something besides Covid. And I feel like the topic of meal and rest breaks is the gift that keeps on giving.

It is. We waited forever to get the decision from the California Supreme Court, the Brinker decision. And it's just been given ever since.

It really has. And it's one of those requirements under the wage orders that employers need to follow as far as, you know, making sure their hourly employees have their rest breaks, have their meal breaks. But it doesn't take into consideration whether the employee wants to take the meal or rest break or can the employee take it, you know, later in the day. It's very, very rigid. We know that that meal break has to be taken within 4 hours and 59 minutes of their shift. Yet employers continue to have struggles, even though they do their best to comply, it still continues to present us with a lot to talk about.

It really does. And I think part of the reason is because it's just counterintuitive. It's sort of like overtime. If I work overtime today and you let me leave early on Friday, why isn't that okay? Why do I have to get overtime for the Tuesday even though I want to leave early on the Friday? And obviously, we know there's makeup time for certain wage orders, but the truth is, the rest break and meal period stuff, most people don't want to take them. I mean, I sit here every day doing my work and I don't take rest periods at a certain period of time. And my, you know, our legal assistants look at me cross eyed like, really? Do you really mean it? I'm like, yeah, we're an employment law firm. We've got to do this right throw in. And I know we wouldn't say the C word today, Covid, but here's the deal. Everybody's teleworking. You think they're taking their rest breaks and meal periods. They may be taking them longer than they should. They may not be taking them at all. You can't monitor them yet you're still responsible for them. So it's a lot and it's really low hanging fruit for plaintiffs lawyers because time card records, you know, whether they're electronic or a time card somebody fills out or a timesheet, you know, if they took their meal period. And a lot of employers have adopted this practice of recording their rest periods, which I think is a terrible idea. You have them clock in and out for their rest period. Oh, great. You know that they got less than 10 minutes. Even if it's paid time, even if you give their time back, there's definitive evidence that you didn't give it to them correctly. And the Supreme Court and the courts of appeal here in California have looked at this issue in a number of ways and they use those records to prove the violation.

I think that this is really important to mention because we did have recently another California Supreme Court decision, it's known as the Donahue vs. AMN services. And the case really hits home the importance of having accurate timekeeping systems, timekeeping documents, but accurately documenting the amount of time, the amount of break time that they have and not fudging the time. And the court really specifically went into detail that the employees are entitled to 30 minutes for their meal break. Not 28 minutes, not 29 minutes. We're not going to round like we can with our clocking in and clocking out. The, the meal breaks are. It's a sacred time that employers have to honor.

Meal and respite breaks, both, right? Yes. Here's what I think about the Donahue case. I think it's the death knell of rounding. Generally you just wait because, let's face it, why did we round before? Because we couldn't do the math. Oh, wait a minute. Johnny came at 10:17. He took his meal period at 12:32. He came back at 104. He ended his day at 5:29. I can't figure it out. So we round. But rounding makes no sense when you have electronic time records that record when somebody was doing what they're doing. So I think this is, and the Supreme Court has done this before, it's the chipping, the chipping away. So now we're being told you can't round meal periods. Well, I gotta tell you, anybody who thought you could round meal periods, you gotta be kidding me right now. The labor code, the Brinker decision, you know, it's very clear about, you know, may not work more than five hours without a unpaid duty free meal period of at least 30 minutes. I mean, there's no fudging on that front. Now the courts have looked at rounding in time and as long as the rounding evens out, it doesn't benefit the employer. They've said that's okay. But if you've got somebody who comes late and leaves early, it is going to benefit the employer. Like it's just a problem. So I think it's an important case and I think it's a great reminder of the fact that you've got to have policies. You've got to have a way to pay the missed meal and missed respiratory premium, whether it's late or missed or too short. You've got to have a way of doing all that. And there's a lot of strategy that goes into this, Erica, that I think people forget. Safeway got hit a couple of years ago for just paying everybody for missed meal periods because the court said, well, how could you tell us you have a good faith effort to try to get them to take their meal periods on time when you just have automatic meal period penalty pay? That's in the time records. So I just don't think employers think about this enough. They're too busy trying to stay afloat in this craziness. And then all of a sudden something as fundamental and as low hanging as rest breaks and, and meal periods comes up. And it's a great time to think about it. Take a moment and think about what does my policy say? What am I doing in practice? Do my managers and supervisors know what they're supposed to be holding people accountable to? I think a lot of times the answer to those questions is no.

I agree. I agree. And that's why we have seen many employers successfully defeat a meal and respreak claim. And those that successfully defeat have the evidence to support what they are doing, that they're following the requirements. They have a policy in place, they have their handbook that clearly states what the requirements are. But most importantly, they're implementing their policy and they're consistent in informing management, informing their employees, reminding them of what the meal and rest break policy is for the organization. It's not enough to just have it in your handbook or to have it have it have a policy on it.

Having said that, a poorly written policy is a big problem.

Yes, yes, that is very true.

What I was going to talk about is with so many employers who have pivoted to remote work arrangements because we have been in a pandemic, I didn't want to say the C word. We've been in a pandemic now for about a year.

We were so concerned about how do we move our workforce from an office based to a remote base That I think things like meal and rest breaks forgotten but were not top of mind because we were so concerned about how we can get our employees working remotely and communicating and getting things done. Not to mention the fact that many of our employees were also teachers at the time with children at home. Distance learning, which does throw a bunky wrench into anybody's schedule. So where I'm going with that in your mention of low hanging fruit is there's a lot of liability that could be hanging right now based upon just the practices that have been happening with remote work. Is there any. What kind of insight can you give our listeners if all of a sudden they're going, oh my gosh, you know what? I didn't even think about meal and rest breaks or I think they were taking it, but I don't even know.

So it's time for a memoir from the owner, from the HR person, whoever it is, reminding people, as you know, we just want to reiterate our rest break and meal policy. Don't create a memo that says, oh, it's come to our attention that many of you are not taking your rest breaks and meal periods. You better fix that or we're going to have a lawsuit. Right. I mean, I've got people who do that and bless them for being transparent. But you got to be a little more strategic about this. I think the reminders are really important. I got a timesheet from one of our folks the other day, two weeks of time. It said she worked 8:30 to 12, she took lunch from 12 to 1 and she left at 5 every day. And that's just not possible. We're not the Flintstones. We don't have a bell that rings or a whistle that rings. You just gotta be really.

Careful and critical of these records and what folks are doing. Nobody's trying to do anything wrong. They're, they're just trying to get their job done. Most people are not trying to take advantage. They're not trying to get you in trouble. But that is how we get in trouble, is becoming complacent about these kinds of things.

How do employers. Do you have any words of wisdom for those employers or maybe more for their managers and supervisors that cringe when they have to remind their employees to take their meal and rest break because it's such an inconvenience for them of the employee, you know, what about the employee that's like. But I, you know, it's 11 o', clock, I'm not hungry or I'm right in the middle of something. Do I really have to do it? It turns into, you know, kind of that uncomfortable. And some employees might view it as discipline. Jen, do you have any words of wisdom for, you know, supervisors that are in those awkward situations where they're having to remind their employees and their employees are grumpy about it? They, it's not convenient for them.

I think there's three things here that need to happen. Number one is you need to tell people up front. And I know many people have not done this, but if you have, you're a lot better off down the road. When I interview people, I tell them, look, you're really important person on this team, but you're a non exempt employee. Non exempt employees need to take rest breaks and meal periods. Here's our policy, here's our rule. Is there any reason you're not going to be able to do this? Because I need to let you know this is a big deal for us and if you don't do it, you're not able to work here. I'm really clear about it up front. That way it's easier for me. The other thing that works if you haven't done that is to say, listen, everybody, I got to tell you the rest break and meal period issue. We've had a policy for a long time. I don't think I've reminded you the way I need to remind you. This is what's going to happen. Don't ask me for exceptions. Don't ask me for doing this another way. I, I didn't write the law. I love you. I know some of this is inconvenient, but you gotta do it ultimately. I know we get squeamish about it, but we just have to embrace it. Just like wearing a mask in the workplace. Many people don't want to hear that either, right? And they get upset at their boss. But you know what people? It's a rule. At least in sane places, it's a rule. I mean, I don't know what is going on. You know, there's all this political business about masks, but if you just get down to whether or not it could save somebody's life, it's really not subject to debate. But people will debate it and that's their right. And I don't criticize that at all. But just like you're going to have to tell somebody in the workplace, look, you might disagree with it, but I need you to wear a mask. You might disagree with it, but I need you to socially. Distance. Same thing with rest breaks and meal periods. The Funny thing is, too, as you know, Erica, the Labor Code doesn't even say it's only non exempt employees. That's in the wage order. So I've always got a little panic about, should exempt employees be taking these breaks? And so I make sure I tell exempt employees, you're in charge, you better eat your lunch. You better take a stretch break.

It's not in the wage order, but the way it's written in the Labor Code is kind of interesting. Labor code section 512, go read it. Because it doesn't only say non exempt employees. So I don't mean for this to sound like a gotcha, Erica, but this is the kind of stuff that nobody should have a compliance issue with. You got to get this straight. Your wage statement better look right. You better be calculating the regular rate for your overtime correctly. You better be giving people respites and meal periods. This is the stuff that you should never have a claim about. There's more complicated things that are going to be harder to defend and harder to comply with. But this stuff, you just got to bite the bullet, understand what it is, and get it done.

I agree. Because I think we've seen enough court decisions, we've seen enough cases that have been filed. So to your point, Jen, when it comes to meal and rest breaks, as the case may be for other requirements under the Labor Code, there's no wiggle room. This is what we have to do. And actually, ironically, of all things that we deal with, where we have a lot of gray areas, this is pretty clear.

This is why I love it.

Pretty clear.

Yeah. People always say to me, jen, why do you love wage hour? Because it's like a recipe. No, if you follow the recipe, the cake looks right. If you do a little half of this and a little shake of that, it's all jacked up. So for me, I. I love the comfort of a rule. You know, I'm kind of a rule follower. I kind of get it.

So. But I'm not saying everybody has to feel that way. It just doesn't matter how you feel about it. You just gotta do it.

That's right. That's right. And just know all of you out there that are making business decisions that may be within kind of the wiggle room. You know, just be aware, be informed that that is very risky place to play. It's like skating on the frozen lake without knowing if it's frozen all the way. You just have to be aware. That is a risk, and it's one that's not going away. Anytime soon.

No. And, Erica, I love the way you put that, because that's what I always say to our clients is, look, I'm not going to tell you what to do. You run your business. I got enough trouble handling my own business. I don't need to handle yours. But I want you to know what the rules are, and I'm going to help you make a risk assessment. And I think that's what people have to understand. I mean, I have trucking companies who say, jen, I can't do it. It's impossible. Okay, then build it into your reserves. So if you get hit for a POGA claim, as one of them recently did, we can write a check. Just be prepared. I just don't want you to be in the ether and not understand what's going on. And I will say, Erica, just really quickly, part of what the pandemic has required is all of us to stay on top of things. I've been doing so much reading and so much on the Internet, and I see a lot of incorrect information. I see a lot of missteps, a lot of guidance that isn't accurate, and it's not a stylistic issue. It's literally wrong.

Employers are at a real disadvantage here. They really need to know when they need to get the resource, call the helpline, call the lawyer, do whatever they need to do to make sure that they're getting the information they need. Because the more creative you get, the more potential liability is going to be on your doorstep most of the time.

I think those are great words to end this podcast with those. That is absolutely true and well said. And thank you again, Jen, for joining me on the podcast.

Oh, it's so much fun for me, Erica. Thank you.

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