December 3, 2020 |
Determining whether you are required to give your employees rest or meal breaks can get confusing. Not only are there the set rules for most businesses, but then there are exceptions for both types of employees and specific fields. Let’s take a few minutes to make this cloudy subject a bit clearer.
California wage and hour law (Labor Code 512, California Code of Regulations) states that employees are to be given a ten-minute paid rest break for every four hours of work or a significant fraction of four hours (two hours or more). A rest break is defined as ten minutes of uninterrupted time free from duties. Employees are also to be given an unpaid thirty-minute meal break for every five or more hours of work. If the employee works ten or more hours, they are entitled to two thirty-minute breaks. All breaks must be based upon the actual number of hours worked, not scheduled hours.
Actual hours means that an employee who works seven hours would be eligible for two paid rest breaks. The first for the first four hours worked, and the second for the last three hours worked. However, seven hours of work also entitles an employee to an unpaid half hour for a meal break because it is over five hours.
Employees may work through the ten-minute rest breaks if they want but can’t work through a meal break. There are exceptions, which we will discuss later. Also, an employee may not skip a meal break to leave early.
Meal breaks must meet certain conditions to comply with the law.
The employee must be free from all duties.
Employees may leave the premises, and employers can’t dictate what activities occur during that time.
Employers can’t discourage an employee from taking a meal break or create a culture where employees feel they can’t take meal breaks.
An employer must provide the opportunity for a meal break, but the employer doesn’t need to ensure the employee takes it.
If you work less than six hours, you may waive your break, but this has to be a mutual agreement between employee and employer.
When an employee works for ten hours, they are allowed two unpaid meal breaks of thirty minutes each. All of the same conditions of one meal break apply. An employee, however, may opt not to take the second meal break. They can’t, however, miss both meal breaks on the same day.
Some circumstances require a person to work during a meal break because nobody takes over their duties. Examples would be a clerk in an all-night convenience store or a private-duty nurse. In these cases, meal breaks must be paid, and the employee must have someplace available that is suitable for eating. If the employee is scheduled to work between 10 PM and 6 AM, the employer must provide a way for the employee to heat food/drinks and must offer a sheltered place to eat.
A ten-minute rest break must be provided for every four hours of work and for each significant part of four hours, which is two hours or more. These breaks are to be utterly free of duties and taken someplace away from the workstation. There are more exemptions regarding these rest periods than there are meal breaks.
Conditions for these rest periods include:
The rest period must consist of ten uninterrupted minutes.
An area other than the restroom must be made available.
The break must be paid.
Preferably, the break should take place about halfway through the period.
Employees may opt-out of these breaks.
All employees are entitled to both meal and rest breaks based on how many hours they work. The periods are based solely on the actual number of worked hours rather than the number scheduled. For example, an employee scheduled to work two hours is not eligible for any breaks, but should the employee work three or four hours, they are entitled to one paid ten-minute break. If they work for five or six hours, they are entitled to a 30-minute unpaid meal break, which they may decide to skip if wanted because they are within the six hours. If the employee works for seven hours, they are entitled to two paid rest breaks and one unpaid 30-minute meal break.
Except for the exemptions where a job requires possibly working during a break, such as an ambulance driver, or when there is nobody to take over the employee’s duties, an employer can’t require an employee to work during these periods. The employer can’t expect an employee to stay on the premises during unpaid breaks because they are off-the-clock.
An employee who works six hours or less may waive their rights to a 30-minute meal break. This waiver must be agreed upon by both the employer and the employee. If that employee is working ten to twelve hours, they may waive the second meal break. However, they may not waive both meal breaks and may not choose to go home early as an option.
There are exemptions to the general break laws. These include specific categories of employees and some professions. Exempt employees are eligible to receive their meal breaks but may not necessarily get rest breaks.
Exempt employees that are not entitled to rest breaks but are entitled to meal breaks must meet the following criteria:
Primary duties must fall under the administrative, executive, or professional category.
The employee must receive a salary that is at least two times the state’s minimum wage for full-time workers.
Employee’s duties must require the employee to use discretion and independent judgment.
Exempt industries are numerous. Among them are healthcare workers, construction, commercial drivers, public agencies, the motion picture industry, security officers, and publicly-owned utility company workers. Yet another category is union workers who have a different break schedule set up in their contracts.
Employers who willingly disregard the required rest and meal breaks are subject to compliance charges. These employers may be taken to court and ordered to provide what is called “premium pay.” This pay is money equal to one hour of the worker’s regular hourly rate for each day of non-compliance.
Premium pay is determined as follows:
Missed Meal Breaks – Equal to one hour of the employee’s regular hourly pay rate for each missed meal break.
Missed Rest Periods – Equal to one hour of the employee’s standard hourly rate for each instance of a missed rest period.
Missed Meal Breaks and Rest Periods – These are under two different areas of the code, so the employee is eligible for one hour of regular rate pay for each meal break and each missed rest period. The employer can not pay just one or the other.
Employees have up to three years to file a case against an employer who did not comply with the mandated break schedules. The employee may first try to clarify matters with the employer. A second option would be to bring up a case with the Division of Labor Standards Enforcement, or the employee can file a lawsuit.
The best way an employer can avoid possible lawsuits is to stay updated on the laws governing rest and meal breaks. This knowledge includes knowing and understanding what exceptions exist and who may be exempted. Make it a point to know the requirements in your state and then make sure you comply with these laws. In the end, the money spent by the meeting of needs will be less than that of settling in court.
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