In April 2012, the California Supreme court in the long-awaited ruling in the case of Brinker v. Superior Court clarified when rest and meal breaks may be provided and when employees are deemed to be on break. It confirmed that all employers have to make meal breaks available to employees but listed certain criteria, all of which must apply, or else employers are required to pay additional compensation to its employees for violating these rules. All the following must be in play for an employee to be on a break:
- The employee has been relieved of all work duties;
- The employer has relinquished control over all the employee’s activities;
- The employee has an unpaid and uninterrupted 30-minute break and may leave the workplace if he or she wishes;
- The employer does not do anything to discourage or interfere with the employee during the 30-minute break.
If any one of these is not present, the employee is considered to be working and is entitled to compensation. The employer may not have a policy or practice whereby the employer offers a bonus or incentive for the employee to forego or skip a break or engages in a coercive activity to that effect.
Further, the decision only requires that employers make the break period available but do not have to ensure that all employees take one.
Employees Have the Burden of Proving a Meal Break Claim
If you feel that your meal break requirement has been or is being violated, the burden of proving the violation is on you. This is distinct from an overtime pay exemption situation where the burden of proof is on the employer to demonstrate a valid exemption. Should you feel that your employer is violating your right to a meal break, you should take the following steps to document the violations:
- Note the dates when the violations took place
- Indicate why you did not take a break
- Identify who told you not to take the break and the time and what was said
- Note if anything was promised to you or if you were threatened into foregoing the break
- Identify who witnessed you not taking a break or heard the person tell you not to take it
Before our office will consider taking your meal break claim, you will have to provide the above written documentation.
California’s Meal Break Law
Under California Code of Regulations, Title 8, Section 11040, employees must be allowed to take periodic meal breaks. The law states:
“No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”
When the Break Must be Taken
This means that you can take an unpaid and uninterrupted 30-minute meal break before the end of the fifth hour of work and be relieved of any duties or restrictions on leaving. You must record the time you begin and end each meal break. If you were unable to take your required daily meal break, this should be reported on your time card or record and you should be paid for the time you worked and one hour of premium pay for that day.
Further, your meal break cannot be taken at the beginning or end of your work schedule or shift. If your work day, however, is less than 6 hours then the meal period can be waived by the employee so long as there is a provision in a written agreement where a meal break is not provided.
When Your Job Does not Permit a Break
There are only a few situations where your job does not permit a meal break. For instance, security guards at remote locations can waive the meal break if there is a written agreement to that effect since stopping their activity for 30 minutes to take a break is not realistic. Likewise, if you are the only worker at a retail store, you could close the store and take your break, which is also not practical, so that this situation does not qualify. Most jobs where there are others to take over your shift for 30-minutes will not qualify for the “on-duty” meal period.
Remember, your employer has to provide you with a 30-minute meal break before the end of 5 hours or he or she is violating the law. If you work a 10-hour day, you get a second break before the end of the second 5-hour period. Should you work 7 1/2 hours with no break, your employer cannot just tell you that your 30-minute break starts now and sends you home.
Extra Pay When You Do Not Get a Break
California Code of Regulations, Title 8, Section 11040 also states:
“If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”
You are only compensated for one hour of missed meal breaks, though, even if you work more than 10 hours in a day and are entitled to two meal breaks and do not get either one. This extra compensation can increase the amount of overtime you are due along with the one hour of pay to which you are entitled for not taking a break.
Overtime Issues Caused by Meal Premiums
For employees entitled to overtime under either state or federal laws, the meal premium would also increase your regular rate of pay when computing overtime. The Murphy court did overrule the California Division of Labor Standards Enforcement, or Labor Board, in that meal premiums could go back 3 years instead of the one year period used by the Labor Board. For a comprehensive and in-depth analysis of the labor law issues involved in Murphy v. Kenneth Cole, please see the link to my blog.
The Statute of Limitations
The statute of limitations for civil claims limits the time when you are able to bring a claim to court. A recent California Supreme Court decision in Murphy v. Kenneth Cole Productions, Inc. held that payments for meal break violations are “wages” and not penalties so that the 3-year statute of limitations applies for these wage claim cases. Under unfair competition statutes, though, employees may be able to go back 4 years for meal premiums.
Contact The Law Office of Alex Tovarian
Do not allow your employer to take advantage of you regarding meal breaks or overtime claims. If you suspect your employer is violating the law regarding proper meal breaks for you or any other employees at your company, contact “Alex Tovarian, employment attorney at the Law Offices of Alex Tovarian for a free case evaluation.