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EMPLOYMENT LAW BULLETIN California employers are required by law to provide rest breaks and meal breaks for employees, and the burden is on the employer to prove that employees were given the required breaks. Rest breaks: All employers are required to provide employees with a 10-minute break for every 4 hours worked. The break is supposed to be given, insofar as practicable, in the middle of each work period. Employees must be paid for time spent on the required rest breaks. Although not specifically required by law, it would be a very good idea to have employees somehow document that they took their rest breaks. Also, the law requires that breast feeding employees must be allowed a “reasonable” amount of time to express breast milk for their infants. These breaks can run concurrently with regular rest breaks. If extra break time is taken for the purpose of expressing milk, however, those extra breaks may be unpaid. Meal breaks: All employers are required to provide employees who work at least 5 hours with a 30-minute meal break. However, the meal break may be waived by the employee if the employee does not work more than 6 hours. (Be sure to get any such waivers in writing, though.) An additional 30-minute meal break is required for employees who work 10 hours. An employee may waive the second meal break if: (a) The employee did not waive the first meal break; and (b) 12 hours of work will finish the employee’s work for the day. Unlike rest breaks, employers are not required to pay employees for time spent taking required meal breaks. Employees must not be required to do any work during meal breaks or rest breaks, unless an employee is having an “on duty” meal break, which means the employer must pay the employee the regular wage during the meal break. Unless an employee is truly an exempt employee, or is being paid for the time spent on a meal break, an employee must be required to clock out at the start of the meal break, and clock back in once the meal break is over. Also, please note that California law requires employers to provide a “suitable place” to take meal breaks for any employees who are required to eat on the premises. Penalties for failing to provide meal breaks and rest breaks can be enormous. California Labor Code § 226.7 provides that if an employer fails to provide an employee either a meal period or a rest period as required by law, the employer “shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” What can employers do to protect themselves? First, make sure all employee manuals, handbooks and procedures spell out that all employees are required to take meal breaks and rest breaks. Second, instruct your managers and supervisors to make sure their subordinates are taking meal breaks and rest breaks. Third, make sure all non-exempt employees are clocking out and in again for meal breaks. Fourth, if possible, have employees somehow document that they are taking the required rest breaks. (One way is to have employees sign a monthly acknowledgment to this effect.) Fifth, call an employment attorney if you have any questions regarding this area of the law. Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net).
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