In California, businesses have to make sure their employees have a chance to take meal and rest breaks. If they don't, the penalties can mount quickly. Meal breaks can be particularly tricky. Here's how to help managers follow the law and ensure your business complies with meal-break requirements. Once trained, managers should be held accountable for violations.
"Employers commonly hold their managers responsible for complying with and enforcing harassment and discrimination laws. There is no reason why similar policies should not apply to wage and hour laws as well, especially given the significant potential liability for negligent enforcement and systematic noncompliance," said John Skousen, an attorney with Fisher Phillips in Irvine, Calif.
Meal-Break Obligation
In California, an employer must relieve its nonexempt employees of duties so they can take a 30-minute meal break within five and 10 hours of starting their shifts. An employer satisfies this obligation if it:
- Relieves employees of all duties during the breaks.
- Relinquishes control over their activities.
- Permits employees a reasonable opportunity to take an uninterrupted 30-minute break.
- Does not impede or discourage workers from doing so.
An employer is not required to police meal breaks and ensure no work is performed during them, Skousen noted. But many employers prohibit performance of any work during meal periods to avoid claims that employees felt pressured to keep working or neglected to report working time while clocked out for meal periods. Some even program time-keeping systems to lock out employees who attempt to resume work less than 30 minutes after they clock out for a meal break, noted Matthew Sonne, an attorney with Sheppard Mullin in Orange County, Calif.
Monitor time records to suss out any meal-period violations, Skousen recommended. Employers also should require employees to sign acknowledgments each pay period that any deviations from the meal schedule are deemed to be the choice of the employees unless reported otherwise in writing.
A similar acknowledgment is a good idea for rest breaks, he noted. In California, workers are entitled to a 10-minute paid rest break for every four hours worked "or major fraction thereof."
[SHRM members-only resource: Meal and Rest Break Requirements by State]
An employee is entitled to one hour of pay for each day a rest-period rule was violated and an additional hour of pay for each day a meal-period rule wasn't followed.
Voluntarily Missed Breaks
If an employee's total work period per day is no more than six hours, the first meal period may be waived by mutual consent of the employer and the employee. If the total work period per day is no more than 12 hours, the second meal period may be waived by mutual consent if the first meal period was not waived.
Employees might decide to waive their meal breaks to earn more money. For example, servers at restaurants often do not want to miss out on tips and may prefer late meals or short meal breaks, noted Leonora "Lenny" Schloss, an attorney with Jackson Lewis in Los Angeles.
The health care industry has a slightly different set of rules, as do some other industries, Sonne said. He recommended consulting with counsel in drafting waivers.
An on-duty meal-period agreement is another option. This agreement should explain how the nature of the work precludes a duty-free meal period and how the employer or employee may revoke the agreement at any time, usually with 24-hour notice, Schloss said. Many jobs require employees to only occasionally work through meal breaks, she noted.
Schloss said that examples of jobs where duties may preclude meal breaks include:
- A concrete mixer at a construction site.
- A night-shift doorman.
- A solo store clerk during the graveyard shift.
- A caregiver for a person with a disability.
Carrots and Sticks for Managers
Some employers provide bonuses to managers for proper scheduling, which encompasses accounting for meal breaks so employees can fill in for others on their breaks, noted Schloss.
Sometimes managers relieve employees for meal breaks and will know whether employees are taking their breaks, she added.
Performance-evaluation scores might include a section on managers' wage and hour compliance, suggested Jennifer Shaw, an attorney with Shaw Law Group in Sacramento, Calif.
She said that a policy that holds managers accountable for ensuring that lunch breaks are taken on time might state, "It is the responsibility of supervisors and managers to ensure their nonexempt employees take required meal periods. The failure to do so may result in corrective action or other negative consequences."
Managers should encourage employees to follow the company meal policy, remind employees to take breaks and counsel employees who fail to follow the policy, said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.
It can be particularly challenging to confirm that offsite workers are taking breaks, although Shaw said that time-keeping apps are making this easier. A telecommuting agreement can note that those working from home must comply with meal-break policies, and managers should monitor telecommuters for compliance, Schloss recommended.
When the company fails to provide a meal break, it should pay the meal-period penalty, Olmsted said.
Nonexempt employees should be encouraged to report to HR any concerns that a supervisor is preventing employees from taking proper breaks, he added.
Article written by: Allen Smith, J.D
Article published in: Society of Human Resources Management, SHRM, June 22, 2018
Article Spotted by: Louise Burden
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