Nearly all private employers in the state must comply with certain laws which afford their workers the right to take breaks at certain intervals, termed “meal periods” and “rest periods.” There is a difference between the two types of breaks, and there has been a great deal of debate in recent years among employers, employees, and courts about how to interpret the break laws.
A long-awaited case pending with the California Supreme Court on these issues is about to be decided: Hornbaum v. Brinker Restaurant Group. What are the existing laws, and what will Brinker soon likely tell us?
Meal Periods
While the meal period laws may differ slightly among various types of employers, the general rules which cover most private businesses and their employees are as follows:
1. “Non-exempt” employees are entitled to “meal periods” under California law. If an employee works more than five (5) hours, he or she must be provided with a meal period. However, if the employee works no more than six (6) hours in total on a shift, the employee and the employer can mutually agree to waive the meal period. In some industries, employees whose shifts exceed ten (10) hours must be given a second meal period, except that if: (a) the total hours worked does not exceed twelve (12); and (b) the employee’s first meal period was not waived, then the second meal period may be waived by mutual consent of the employer and the employee.
2. A meal period is a 30-minute (or longer) period where the employee is completely relieved of all work duties. Meal periods must be uninterrupted, but they may also be unpaid.
3. If an employee is not provided a meal period in accordance with California law, he or she must be paid an additional hour of pay at their regular rate for each day that meal periods are not taken. Claims for these back wage payments can extend back three years from the date the meal periods were missed. Certain narrow exceptions allow for meal periods to be considered “on duty” and avoid the one hour of pay penalty, but those circumstances are very limited.
A few of the things Brinker is expected to tell us are the length to which employers must go to ensure that meal periods are taken, and the timing of when meal periods should be taken in the midst of a work shift.
Rest Periods
As with meal periods, most private employers in California must comply with laws which afford their workers the right to take rest breaks, but at more frequent intervals than meal periods. Non-exempt employees are entitled to a rest period for each period of four hours worked (or “major fraction” of a four hour work period); however, a rest period need not be authorized for employees whose total daily work time is less than three and one-half hours. What is a “major fraction” of a four-hour time period? That question is up for review in Brinker; historically, though, “major fraction” has been interpreted to mean more than two hours of a four hour work period. In other words, if an employee works a total of three and one-half hours or less in a day, no rest period is required; but, each time an employee works more than two hours into a scheduled four-hour block of time, they must be given the opportunity to take a rest period. Insofar as practicable, rest periods should be in the middle of each work period, i.e., around the end of the second hour. Brinker is expected to clarify these rules.
A rest period is when an employee must be allowed to take at least a ten (10) minute break. In contrast to meal periods, however, rest periods must always be paid as time worked. And unlike meal periods, employers need only “authorize and permit” rest periods be taken, meaning that employers should explain to employees that they have the right to take rest breaks, but employers are not obligated to force employees take rest periods.
Similar to meal periods, if an employee is not allowed to take a rest period, he or she is entitled to an extra hour of pay for each day that they are not allowed to take a rest period. Again, claims for these back wage payments can extend back three years from the date the rest periods were missed. And courts have also held that an employee may recover up to two hours of premium pay in a single work day for meal and rest period violations: one for any meal period violations in a work day and one for any rest period violations in that same work day.
With Brinker on the cusp of resolution, California employees and employers should expect firm guidance on how to follow California’s meal and rest period laws. If you need help with understanding these laws and how they affect you, contact an experienced San Diego employment attorney at Pope, Berger & Williams, LLP.