Is it much of a secret that wage and hour law violations, of all employment law violation claims, are the most common? It shouldn’t be yet employers seem to miss this…a lot. One area that is often misunderstood is that of breaks and meal periods for non-exempt (hourly) employees. There is a difference regarding how each is treated. The key elements are below:
- Breaks are required to be provided but aren’t required to be taken. This is a common misconception whereas companies often think that employees must take their rest break. They don’t have to, but you must provide it to them unimpeded and without discouragement.
- Breaks are required to be provided a minimum of 10 minutes and made available for each 4 hours worked or major fraction thereof as practical in the middle of each work period.
- Rest breaks are paid.
- Rest breaks need not be recorded.
- Employees are not required to stay on the premises during breaks.
- Employees are encouraged to take their break away from their work area.
- Employers are not required to provide a rest break if the work period is less than 3 and a ½ hours.
- Please note that there are other elements that organizations must consider that may require you provide more breaks or longer breaks based on work conditions, the type of work being performed, and the industry.
- If a rest break is denied, discouraged, or in any way impeded, a missed rest break premium must be paid to the employee. The premium is one hour of regular pay added to the day of the missed rest break violation.
- Employees are entitled to a 30-minute uninterrupted, duty-free meal break for every work period that is more than 5 hours in a workday. Meal breaks can be longer, but they cannot be shorter than 30 minutes.
- Meal periods are unpaid.
- The meal period must be started before the end of the 5th hour. For example, if an employee starts work at 8 am, they must start their meal period before 1 pm.
- If an employee is scheduled to work no more than 6 hours in a workday, they can waive their meal period without penalty. This must be agreed to in writing by mutual consent.
- Meal periods must be recorded by the employee to the minute. Rounding or auto-deducting meal periods doesn’t protect an employer if a claim is ever made. The California Supreme Court has recently determined that rounding and auto deductions do not demonstrate that meal breaks were actually taken as prescribed by law. This means that if you do any of these, you will unlikely be able to successfully defend yourself against meal break claims.
- If an employee has a meal break less than 30 minutes, takes a meal period late, or doesn’t take a meal period at all as required by California law, a missed meal period premium must be paid.
- The missed meal period premium is one hour of regular pay (doesn’t add to actual time worked for overtime calculations) to the subject day in which the meal period violation occurred. It must also be identified in the employee’s paystub. The totality of meal and break period premium is no more than 2 hours in a workday.
If you are confused or suddenly feeling panic about any of the above, it will be ok. Changing things isn’t as hard as it may seem and, if you need more guidance, give us a call. But now that I talked up meal breaks, I realize I’m hungry and in need of one myself. You may need a break, too. If you are non-exempt, it may even be required. Bon Appetit.