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Denying Meals or Rest Breaks

At the time of this writing, meal and rest breaks are a hotly contested area of the law. Currently, the California Supreme Court is hearing two important cases that seek to better define the rules pertaining to rest and meal breaks.

Here are the general rules, and then I will try to point out the issues that have sparked the controversy.

Rest Breaks

The general rule is that the employee is entitled to a 10 minute rest break on the clock for every 4 hours of work. The failure not to provide the rest break exposes the employer to paying the employee an additional hour worth of pay.

Sounds simple? Well not really. The current problem for rest break is what I would characterize as the permitted standard. In other words, the rest breaks are permitted, so long as you request them, but if you do not request them, you don’t get them. In short, use it or loose it.

Keep in mind, however, that an employer cannot deny you a rest break, but the difficulty in bringing a complaint before the labor board or bring a court action on this subject, is that many times the employer will dispute the testimony of an employee who contends his or her rest breaks were denied. Since there is generally no paper trail (e.g. time clock records; emails), it is not easy to prove.

If an employee can prove the employer failed to provide the rest break, the employer will have to pay the employee an additional 1 hour of pay per violation.

For these reasons, most attorneys are not comfortable with taking on a pure rest break case. As a result, it would be of wonderful use, if the employee could get confirmation in writing, say through and email, that rest breaks by the employer are not permitted, per the 10 minutes every 4 hours.

Meal Breaks

Meal breaks, in my view, do not have quite the proof or legal problems as are associated with rest breaks. However, like rest breaks, the California Supreme Court is still considering how to deal with this issue.

Until better clarified, the law provides essentially the following: If you work a shift of GREATER than 6 hours (i.e. 6 hours and 1 minute), then the law requires that after 5 hours your employer must provide you a 30 minute, off the clock, and uninterrupted meal break.

Unlike the proof problems regarding rest breaks, the law requires that all meal breaks reflect clock out verification or evidence. Absent a written record of your clocking out, the burden shifts to the employer to prove you did, in fact, have your meal break.

In addition, you cannot be short changed in your 30 minutes, nor can you be REQUIRED to stay at the employer’s premises for lunch (e.g. lunch room). You are free to do what you want during your 30 minutes, and your employer is NOT ALLOWED to INTERRUPT your lunch break, by having you do work (e.g. take calls, talk to customers, attend a work meeting). Your time is your time.

Any violations wherein your employer does not allow you a full and timely 30 minute lunch break, without interruptions, currently lends itself to the employer having to pay you an additional one-hour wage per incident.

Similarly, while not yet a law, a major push both in the legislature and with the Supreme Court, is an attempt to characterize the lunch break as permitted as opposed to mandatory. Again in other words, use it or loose it. Other arguments in support of the permitted standard include the suggestion that many employees do not want to take a meal break. They want to just work through the meal break in order to go home earlier. In addition, many employers complain that the California rules are too cumbersome and expensive for business to comply with the laws.

It will be interesting to see how it turns out, but, in my opinion, I think the rest break issue is more problematic for employees; however, the lunch breaks should be considered more sacred.