The rules on meal and break periods
By James Sullivan
Lombardo
&
amp; Gilles
Employees must take time off for meals or breaks, or be compensated for it
Since 2001, California employers have struggled to avoid liability to hourly employees for missed meals and rest periods. This year the California Supreme Court strengthened the remedies for hourly employees in its decision, Murphy v. Kenneth Cole Productions.
The rules on meal and break periods
By James Sullivan
Lombardo & Gilles
Employees must take time off for meals or breaks, or be compensated for it
Since 2001, California employers have struggled to avoid liability to hourly employees for missed meals and rest periods. This year the California Supreme Court strengthened the remedies for hourly employees in its decision, Murphy v. Kenneth Cole Productions.
The Murphy decision interprets Section 226.7 of the Labor Code, which requires that employers provide meal and rest periods to their hourly employees, and requires payment of one hour’s worth of pay each time the meal or rest period is missed. The argument in Murphy was whether the payment under 226.7 is a penalty, in which case the limitations period for suit is one year, or whether it is wages, in which case the limitations period is three years. A related claim under the Unfair Competition Law can extend the limitations period to four years if the hour’s pay is not a penalty. The Court decided that the one hour’s worth of pay is premium pay like overtime pay, and not a penalty. In one fell swoop, the Supreme Court quadrupled the liability exposure of employers.
One hour’s worth of pay may not sound like much, but Section 226.7 claims generally concern workplace practices that apply to many employees, and the hours add up quickly. Plaintiff’s attorneys often file class actions covering large numbers of hourly employees for the full four years limitations period. What used to be an individual claim for missed break periods to be decided by the Labor Commissioner is more likely now to be a “bet the company” claim to be decided by a jury.
Given these stakes, employers and hourly employees alike should have a clear idea of their rights to meal and break periods.
Meal Periods: an employee shall have a meal period of at least thirty (30) minutes relieved of all duties for each work period of five (5) hours, provided that if the day is not more than six (6) hours of work, the meal can be waived by a mutual agreement between the employee and the employer. We recommend that employers record the time each meal break starts and finishes each day. Meal breaks without duties are not paid time. Meal breaks where the employee continues to work do not meet the requirement unless both of the following apply: (1) the nature of the work prevents the employee from being relieved of all duties; and (2) there is a written agreement for such on the job meal period that states that the employee’s consent can be revoked at any time.
Rest Periods: an employee shall have at least a ten (10) minute rest period without duties for each four-hour work period, or major fraction thereof, provided that no rest period need be given if the entire work day is less than three and a half hours. Rest periods are not paid. A “major fraction” of 4 hours is a period in excess of two hours, so that a second rest period must be afforded if the entire work day lasts more than six hours, and a third rest period is required if the work day lasts more than ten hours. Rest periods should be scheduled as close as practicable in the middle of each four hour work period.
In summary, all employers must familiarize themselves with the rules concerning meal and rest periods and make sure that they are observed in the workplace. If they are not, employees have a range of strong remedies. If they prefer not to commence litigation over problems with meals and breaks, employees can render a real service to their employers by notifying their human resources manager that they have not received their meal and break periods. Employers receiving such reports should immediately correct the problem and authorize an hour’s worth of premium “meal and break” period pay. Employers can also count themselves lucky for avoiding this costly litigation.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas. James Sullivan is a lawyer at Lombardo & Gilles, LLP, specializing in labor law. He can be reached at 888-757-2444 or [email protected]. Mail your questions to James Sulliven, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister, CA 95023 or contact Jeff at 888-757-2444 or [email protected].
