Episode 15: Meals and Breaks at the Office

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel. With me today is Mike Nader, an attorney and shareholder in the Sacramento offices of the Ogletree Deakins law firm. Mike regularly counsels employers on how best to comply with California's employment laws while meeting their company's business objectives. Michael, welcome.

Thank you for having me.

Today we're going to talk about a topic that is near and dear to, I think it's safe to say, all employers and HR's heart, CA's meal and rest break rules. And today, all of you, you are in for a special treat because we not only are going to conclude with a poem, it is a funny poem written by a lawyer. And I don't know how many of us could say we have put funny and lawyer. So today you got it.

Funny Lawyer and meal and rest breaks.

Oh, that's a good one. Funny. Lawyer and meal and rest breaks. Now I bet that is a new one. So all of you listening, we are breaking some ground today. But in all seriousness, Mike, we know that there's a lot of issues with meal and rest break, so let's break it down to our listeners a little bit so maybe they can make sure that they have it clear in their head or maybe they need to go and make some tweaks to the workplace policy. So as a litigator, Mike, do you see a number of lawsuits come across your desk related to meal and rest break violations?

All the time.

All the time?

All the time. Almost every wage and hour class action I receive includes meal and rest break claims alleged both as labor code class action claims and as well as claims under the private Attorney General's Act.

Okay, so in class actions, for those of us that may not know, those are, in Laban's terms here, huge lawsuits filed by a number of individuals collectively. Is that fair to say?

That's right. But, you know, you can just be one employee and file a class action lawsuit claiming to represent a class of employees at the company, and it could be millions in exposure at issue.

Well, there we go. So let's talk a little bit more. So I know that there's a lot that goes with meal and rest breaks, and I know that we only have a limited amount of time, but could you provide us with the Reader's digest version of California's meal and rest breaks? And let's start it with meal breaks.

Sounds good. You know, both the Labor Code and the Industrial Welfare Commission wage orders provide the rules for meal Breaks. In California, essentially there is a standard called the provide standard. What that means is basically the employer has to do four things. Number one, they have to relieve the non exempt employee of all duty during the meal break time. So the meal break period must be completely duty free and the employee should be allowed to leave the premises if they wish. Second, the employer must relinquish control over the employee's activities. Third, the employer must permit the employee a reasonable opportunity to take an uninterrupted 30 minute meal break. And fourth, the employer cannot impede or discourage the employee from taking the break. So the employer cannot pressure or coerce employees to skip or shorten their breaks, and they can't create incentives or otherwise encourage employees to skip or shorten their meal breaks.

Okay, so when we talk about nonexempt employees, we're talking about our hourly employees, not those that don't have to punch that clock and whatnot.

That's correct.

And as employers, then we have the obligation to meet these four requirements of essentially giving our employees this break time. And the break time is 30 minutes in duration. Is that correct?

That's correct.

Can it be longer than 30 minutes?

It certainly can be longer. It just has to be at least 30 minutes.

At least 30 minutes. Okay. And let's talk a little bit about the timing. What are the timing requirements as to when that meal break has to be provided?

Now, there may be some variations in some of the wage orders, but in most situations, an employee should start their meal break before the end of the fifth hour of work. So for example, four hours and 59 minutes into the shift, they should be starting their meal break. Okay, so if they start work at 7am they should start their meal break no later than 11.

Okay, so this brings to mind a common question that we get on the labor law helpline is we are providing our employees with a working lunch and the working lunch will be at noon. So because we're providing food, we are meeting our obligation to provide that meal break. Is that correct?

That's not correct. And that's a common misnomer. Under California law, a meal break really has nothing to do with lunch. It's really the opportunity to provide the employee with duty free uninterrupted time where they are free to leave the premises. If the employee wishes to eat during that period, that's fine. But if they wish to do something else during that period, that's fine as well.

Okay, and what we're talking about here, since we are providing that Reader's Digest, is we're Giving more of the general framework, because we also know under the Labor Code that if an employer's shift is six hours or less, the employee can waive their meal break. Is that correct?

That's correct.

Okay. But in all other circumstances, there's some more detail if the employee shift is 10 to 12 hours. But let's keep everybody smiling on this podcast and keep it very basic. All right? So meal breaks must provide a meal break within four hours, and it must be taken within four hours and 59 minutes. If the employer doesn't provide it, or if the employee doesn't take it by 4 hours and 59 minutes, is there a penalty, so to speak?

So that's a complex question. If the employer fails to provide the employee the opportunity, then they have failed to comply with the law and a premium payment is due. That's the penalty payment, and that's one hour of the employee's pay at their regular rate of pay for each whole shift or each day that a meal period is not provided. So, for example, if you work a shift long enough, like 10 hours or more, that requires two meal breaks, and you miss both meal breaks, you still only owe one premium payment for that day.

Okay, so it's one premium payment for however many missed meal breaks.

That's correct.

And it's one hour at the regular rate of pay each day. Ok, that's correct.

And then on your other example, if the employee does not take the lunch, so if the employer technically complied with the law and provided the full opportunity to take the lunch, the meal period, then no premium should be required. It's up to the employee. If the employee voluntarily made the decision not to stop working and not to take the lunch, then still the employer has complied. The risk, though, is that when employees do this, that it creates a time record in your time records showing that the employees are not clocking out when they should have for a compliant meal break. And all you need is one employee to turn on you and to come back later and claim, you never provided me with a meal break and you never provided my colleagues with meal breaks either. And then you have class action.

Right, because you have no documentation. That's right. So best practice, at least something that we always talk about at the Chamber, is it's really in the best interest to have those policies and practices that ensure that the breaks are being taken, even though the employee may not want to. It's actually good for everybody to be away and have a break from work. And why not have that 30 minutes or sometimes an hour that we're offering to you.

I agree. And you want policies that are detailed and encourage employees that they should be taking their meal breaks when provided and also processes that record when the employees do it. So not only your time records, but maybe an attestation process where employees every payroll period can confirm in writing that they received the opportunity to take their compliant meal breaks and that they took them. And that they received their compliant rest breaks when they took them as well.

So you've just provided a great segue. So let's talk a little bit about rest breaks. So we just talked about meal breaks. They are. The shortest duration would be 30 minutes. And I don't know if we touched upon this, but the meal breaks are generally unpaid because it's off clock time.

That's correct. They're duty free. They can be off the clock and they can be unpaid.

Okay, so now let's talk about rest breaks. Tell me a little bit about rest breaks.

So California's rest break rules are primarily set forth in the wage orders and employers are required to authorize and permit non exempt employees to take rest breaks at the rate of 10 minutes for each rest break for every four hours of work or major fraction of a four hour period. A major fraction of four hours is a period in excess of two hours. Like meal breaks, there are certain times when the rest breaks accrue.

So let's boil this down a little bit. So let's take the example of the 8 hour employee. How many rest breaks then would they be entitled to?

So in an eight hour shift, the employee would be entitled to two separate ten minute rest breaks.

Okay, now let me ask you this. Is there a timing requirement with rest breaks like there was or like there is for meal breaks?

There is. The only constraint on the timing requirement of rest breaks is that they are required to fall in the middle of work periods insofar as practicable. So according to the Supreme Court, this requires employers to make a good faith effort to authorize and permit rest breaks in the middle of each four hour work period. So for example, if an employee starts work at 7am the company should make a good faith effort to authorize and permit the first rest break at around 9am as far as practicable.

And then their meal break would be by what, 11:59 that we talked about. And then you continue with the calculation until the end of the day?

That's correct. And then the second rest break around the middle of the second four hours of the day.

Got it. Now you know we talked about meal breaks being unpaid Is the same true with rest breaks?

Rest breaks are paid and they should be on the clock.

Okay, so that's a little bit different. So how do we enforce the rest breaks if it's on the clock? You know, we talked about having records. How do employers try and establish that with rest breaks?

So the employer should have robust, detailed policies demonstrating to the employees that rest breaks are provided and that they're expected to take them. And it should set forth, the employers should relieve the employee of all duty for the full duration of the rest break. Second, the employer should permit the employee to leave the premises during the rest break. Third, the employer should not interfere with interruption, impede or encourage the employee from taking the rest break. And fourth, the employer should not require the employee to remain on call or to monitor a cell phone or pager while on the rest break.

I remember that court case. As far as, is there a specific location that the employers should provide the employees?

Employers do need to provide a place suitable for a break to be taken, but they cannot require the employees to take the break at that location.

Okay, so let's get to some of the nitty gritty. I'm sure you've seen a lot in this issue. In this issue area, what are some of the common hiccups that you've seen in your meal and rest break practice?

It's frustrating because employers often are complying with these policies. It's just that they're not documenting them, which of course we need in lawsuits. For example, a common situation is employers have compliant meal break practices and that they regularly provide employees the opportunity to take a compliant meal break. But the employees voluntarily don't take the break at the right time or fail to clock out for the full 30 minutes. So then you have time records that don't indicate compliant meal break policies. So for example, employee A should start her meal break no later than 11:59am but her best friend at the workplace, employee B has a later shift that starts her meal break at 12:30. Employee and so employee A chooses to wait and take her meal break with her friend at a later time. That was completely voluntary. But now the time records indicate that somehow the meal break was not compliant.

I could see that being a problem.

So that's a great example of a common meal break hiccup. And I really appreciate you focusing on the fact that employers really need to make sure that they have documentation to support the practices that happening at the workplace. What about rest break claims? I would imagine those are a little trickier.

Yeah, similar problem, but it is A little trickier. Employers, again most likely comply with the law where employees do have the opportunities to take their rest breaks. It's just that a lot of employees, diligent as they are, choose to work through rest breaks and they never let a company know, or they never even choose to take further time to take the rest breaks. So while the company is fully authorizing and permitting rest breaks, employees may regularly not be taking them. And that's where the company wants to make extra efforts to show that they encourage and expect employees to take their rest breaks and to again try to build that documentation either through an attestation process or some other way that employees can confirm that they at least received the opportunity to take rest breaks.

Now Mike, when we were talking a little bit ago with meal breaks, we mentioned that there's that penalty or premium wage due. Is the same applicable to rest breaks?

That's correct. Now let's say in an eight hour shift, if an employee was entitled to two rest breaks, if they are not provided, if they are not authorized and permitted to take one of the rest breaks because of work related restrictions, then the employer is required to pay one hour of pay as a premium for that failure to comply.

So even if it's two rest breaks lost, I still would only bethe employer is still obligated to Pay for the 1 hour premium pay at the regular rate. That's correct. Okay, so let's say that the employee worked all day because they were on a huge deadline, there was no time to break, no time to relax, and the employee misses both rest breaks and a meal break. So clearly we have a violation of both the meal and rest break rules. In that circumstance, the employer would be paying the employee for all hours worked because they were working for all hours. And then with regards to the premium pay owed, it would then be 2 hours total of premium pay, correct?

That's correct. As they say, one for each species there. One hour premium pay for the missed rest breaks and one hour of premium pay for the non provided meal break.

Okay, super helpful. I think a lot of what we've talked about today highlights the risks and some of the things that employers could do to help minimize some of those risks. For example, making sure that you have well drafted meal and rest break policies, ensuring that your employees and your supervisors are are aware of the requirements and whatnot. So Mike, do you have any words of wisdom that you can share to our audience?

Yes. You know, a wise professor at Notre Dame once told me, Michael, if you really want to change the world, don't just be a lawyer instead be a poet or a folk singer. He emphasized that art and poetry more directly reach the minds and hearts of people than a litany of legal rules. So I have composed the following poem that is dedicated to the unsung heroes of California. It's employers and job creators and it's entitled Breaks in Paradise.

All right folks, here it is. Here's the moment you've been all waiting for.

Breaks in paradise. California is wonderful. The weather's always nice. The legislature promises a worker's paradise. And for that very reason, let us offer some advice. A worker is entitled to a meal break at least 30 minutes in an eight hour day. Let them leave their seat so they can go eat or you will have an extra hour to pay. For goodness sakes, please let them take their meal breaks. For that's what good employers always do. 4 hours 59. It's time for them to dine. That's what the law says they're entitled to. The time has got to be completely duty free. They can leave the building if they choose. If they work more than 10, they get to break again. Don't let them and you've got a lot to lose.

And if they say they waive it, sign the form and save it so you can prove that they gave it. That record that you're making of time worked and meal breaks taken can really save your bacon.

Make no mistakes. Not giving compliant breaks could cost you very dearly down the road. Some guys with a grudge could go to a judge and who will calculate precisely what they're owed. A wise word to the employers, please listen to your lawyers. Employees always get rest breaks. A net 10 minutes each. Once again, you see, completely duty free. Let them go and kick back on the beach. That's how the law protects them. Don't even try to call or text them. Detailed break policies must be provided so every employee can know the score. Are there any questions? These aren't just suggestions. Failure to comply will cost you more. Any questions? A wise word to employers, Please listen to your lawyers. And that's why I am here. That's Breaks in Paradise by Michael Nader.

All right, that's absolutely awesome. Awesome, awesome, awesome.

Thank you.

Well, I don't know what else to say, but that's a wrap. Fantastic today. Thank you so much, Mike. And hopefully we've provided a little bit of words of wisdom as well as entertainment to you of all of our listeners today. Thanks for joining us at the Workplace. Please share, comment and subscribe to our podcast@calchamber.com.