H.R. Alert

I recently visited with the newly appointed State Labor Commissioner who oversees the interpretation and enforcement of all California's wage and hour laws. The meeting was attended by both defense and plaintiff employment attorneys where the focus was the employer's obligation to enforce the meal and rest periods for the non-exempt employee. The Labor Commissioner stated that in the future his offices will rigorously enforce the employer's obligation to PROVIDE and ENFORCE the meal period obligations. Coincidental to this meeting, I reviewed a case filed by several unionized UPS drivers whose argument was that it was the employer's responsibility to rigorously enforce the meal period breaks (not just provide them). Suggesting to employees that they take the meal period was not considered sufficient. Guess what? The drivers won. As a result I want to go over the basics so that there is no confusion or misunderstanding what you have to do.

These laws apply only to your non-exempt workers whose compensation is driven by their hours of work. It is a misnomer to call them hourly since you may have non-exempt workers who are paid a salary. Typically, non-exempt workers represent 90% of your work force. They are your carpenters, plumbers, electricians, dental assistants, inside sales personnel, dock workers, mechanics, clerks, receptionists, bookkeepers, service technicians and accountants that you employee. These laws do not apply to your exempt workers represented by managers, supervisors, estimators, controllers, engineers, and associate doctors.

The meal period laws state that a non-exempt employee is entitled to a minimum of a thirty minute meal break for every five hours of work. It is left up to you as to whether the meal period is paid or unpaid and typically, it is unpaid. The meal period may be waived upon mutual consent if the employee works only six hours or less each workday. Incidentally, the meal period may be longer than thirty minutes.

Meal breaks may be un-paid only if:

• They are at least thirty minutes long;
• The employee is relieved of all duty; and
• The employee is free to leave the premises

On the rare occasion that your employees work over ten hours in a workday they are entitled to two (2) thirty minute meal breaks.

It is very important that you actually record each workday for each employee on his or her timesheet as the following:

• The actual time the employee started work;
• The time the meal break started;
• The time the meal break ended; and
• The time the employee stopped work for the day

Why is this important? Suppose you fire this employee and he or she responds by filing a charge with the Labor Commissioner that he or she worked for you for five years and was never given a thirty minute meal period. Your success or failure with the L.C. will rest on YOUR documented proof that the employee took a thirty minute meal break each workday as evidenced by the notation on the time sheet giving the time the meal break started and ended. It is equally important that you have the employee and his/her supervisor sign the employee's time sheet thus verifying that these are the actual hours worked.

What are the penalties for failing to provide a meal period? It's ugly. For each workday that you fail to provide and enforce the meal period you owe the employee one additional hour of pay at the employee's regular rate of pay. What happens if you provide meal breaks but the employee chooses not to take them? The Labor Commissioner takes the position “that an employer has an affirmative obligation to ensure that all non-exempt workers are relieved of all duty, not performing any work and free to leave the worksite” (Legal opinion letter of the California Labor Commissioner, September 17, 2001). Based upon this information an employer must take all reasonable steps to ensure that all nonexempt workers are actually taking meal periods.

What about on-duty meal periods where an employee is not free to leave the premises during a meal period? You can accommodate this situation under the following circumstance:

• Is permitted only when the nature of the work prevents an employee from being relieved of all duty;
• Must be agreed to in writing and signed by both the employee and employer;
• Must be paid; and
• May be revoked at any time in writing by the employee.

SO WHAT SHOULD YOU DO?

• Take this information seriously.
• Document the meal period laws in your employee handbook.
• Insist that all non-exempt workers take a thirty minute meal period if they work over five hours each day.
• Mandate that all non-exempt employees sign a daily or weekly time sheet noting for each workday when the meal period began and ended.
• Discipline those who violate these policies.

Any questions please do not hesitate to call me (415) 892-1497 or e-mail me larrylevy@earthlink.net.

Larry Levy
Employee Relations Management

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