3 Basic Steps to Comply With Meal & Rest Breaks in California
This guide contains only general information.
It is NOT LEGAL ADVICE.
Please note that each state may have different standards.
IB Law Firm is not responsible for the contents of external links.
It is NOT LEGAL ADVICE.
Please note that each state may have different standards.
IB Law Firm is not responsible for the contents of external links.
Wage and hour lawsuits can take in average $4.5 million to settle. Some class actions were settled at over $100 million.
California is one of the states that require employers to provide non-exempt employees with meal and rest breaks. Failure to provide the breaks may result in payments of breaks premiums and impose the risk of expensive litigation.
This summary of general meal and rest breaks compliance principles will help employers in California to avoid risky lawsuits.
California is one of the states that require employers to provide non-exempt employees with meal and rest breaks. Failure to provide the breaks may result in payments of breaks premiums and impose the risk of expensive litigation.
This summary of general meal and rest breaks compliance principles will help employers in California to avoid risky lawsuits.
- WHO is entitled to breaks?Employees, not independent contractors
Non-exempt employees
Ununionized employees
Industry-specific exceptionsW
Employees, not independent contractors
Employers should carefully assess each position based on federal and state laws.
The meal and rest breaks requirement applies only to employees. It does not apply to independent contractors. Whether a person is an "employee" depends on many factors. In California, to classify a person as an independent contractor (not an employee), the employer will have to satisfy three conditions of the so-called ABC test.
A. The person is independent of the hiring organization in connection with the performance of the work.
B. The person performs work that is outside the hiring entity's business.
C. The person is routinely doing work in an independently established trade, occupation, or business that is the same as the work being requested and performed.
Under this ABC test, workers are considered employees unless proven otherwise.
A. The person is independent of the hiring organization in connection with the performance of the work.
B. The person performs work that is outside the hiring entity's business.
C. The person is routinely doing work in an independently established trade, occupation, or business that is the same as the work being requested and performed.
Under this ABC test, workers are considered employees unless proven otherwise.
Non-exempt employee
Non-exempt employees are those who do not fall under any of statutory exemptions.
The law created several exemptions from the wage and hour and meal and rest break requirements. If an employee falls under any of the exemptions, the employer does not have to (although it may choose to) provide meal and rest breaks. To identify whether an exemption applies, employers must determine several things.
(a) What is the employees' primary role?
Exempt employees are those who have executive, administrative, professional, or like roles. There are other occupation-specific exemptions, such as computer programmers or salespersons. Importantly, there is no unified set blueprint for each role. It depends on the specific duties of each position and company practices. Where things can get murky – is the borderline or mixed positions of exempt and non-exempt work.
(b) Does employees' base salary satisfy the minimum requirement?
The second indicator of exemption is the base salary. It must be more than $684 a week for Executive, Administrative & Professional employees. This comes to approximately $35,000 – 36,000 a year. And there is another exemption of highly compensated employees who must receive approximately $107,000 or more a year. There may be nuances of what is included in the base salary: bonuses, lodging, or meals. But the idea is that the salary has to be above a certain minimum.
(a) What is the employees' primary role?
Exempt employees are those who have executive, administrative, professional, or like roles. There are other occupation-specific exemptions, such as computer programmers or salespersons. Importantly, there is no unified set blueprint for each role. It depends on the specific duties of each position and company practices. Where things can get murky – is the borderline or mixed positions of exempt and non-exempt work.
(b) Does employees' base salary satisfy the minimum requirement?
The second indicator of exemption is the base salary. It must be more than $684 a week for Executive, Administrative & Professional employees. This comes to approximately $35,000 – 36,000 a year. And there is another exemption of highly compensated employees who must receive approximately $107,000 or more a year. There may be nuances of what is included in the base salary: bonuses, lodging, or meals. But the idea is that the salary has to be above a certain minimum.
Unionized employees
Unionized employees' rest and meal breaks may be subject to the agreement with the employer.
T.
Industry specific exceptions
Employees in .
T.
Resources
Useful links.
Misclassification of Employees as Independent Contractors (Department of Labor)
Understanding Employee vs. Contractor Designation (Internal Revenue Service)
Understanding the Difference Between Exempt and Non-Exempt Employees (U.S. Chamber of Commerce)
Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA) (Department of Labor)
Understanding Employee vs. Contractor Designation (Internal Revenue Service)
Understanding the Difference Between Exempt and Non-Exempt Employees (U.S. Chamber of Commerce)
Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA) (Department of Labor)
- HOW to implementStructuring
Recording
Reporting
PayingH
Structure the breaks
Create a structure of breaks with proper frequency, spacing, duration, and freedom from employer's control
Structuring the breaks is different from scheduling them. An employer is not required to schedule the breaks, but it must "provide a reasonable opportunity" of taking the breaks.
Employers are also not required to police employees to make them take their breaks.
How to structure the breaks may depend on the nature of the employer's business, available space on the premises or outside, security checks, donning and doffing requirements, and the like. If the business must always be open and there is no opportunity to have all employees take breaks at the same time, a flexible schedule may be an option.
Main things to remember when you structure the breaks:
1. Employees must be free from the employer's control. This is the main requirement of providing meal and rest breaks.
2. Meal break must be no later than the end of the fifth hour. So, if an employee started his work at 8:00 AM, his meal break must start no later than 1:00 PM.
3. There must be at least one 10+ minute rest break for each major fraction.
4. No combining of breaks into one long break, unless necessary.
Employers are also not required to police employees to make them take their breaks.
How to structure the breaks may depend on the nature of the employer's business, available space on the premises or outside, security checks, donning and doffing requirements, and the like. If the business must always be open and there is no opportunity to have all employees take breaks at the same time, a flexible schedule may be an option.
Main things to remember when you structure the breaks:
1. Employees must be free from the employer's control. This is the main requirement of providing meal and rest breaks.
2. Meal break must be no later than the end of the fifth hour. So, if an employee started his work at 8:00 AM, his meal break must start no later than 1:00 PM.
3. There must be at least one 10+ minute rest break for each major fraction.
4. No combining of breaks into one long break, unless necessary.
Record the reasonable opportunity of taking the breaks
Cultivating a compliant wage and hour atmosphere.
Keeping accurate records of employees' work time goes hand-in-hand with how the employer determines the work time. For example, if an employee's work time begins when s/he changes into a uniform, the time-tracking should start at least before that moment. If an employee works from home, the time-tracking might need to start before she turns her computer on. If an employee has to go through a medical check or a security check, the time-tracking may need to start before the checkpoint.
Even if the employer has correctly determined when the work time starts and ends, it may sometimes become challenging to keep the work within those boundaries. For example, there may be occasions when an employer asks an employee to perform work off-clock. ("Hey, could you drop this off on your way home please?" or "Can you unload this truck during your lunch please?"). That is when the work starts creeping outside of the clock-in/ clock-out zone. To record the absence of such creeping is more challenging. Employers can create a red-flag system to intercept any potential wage and hour violations. For example, an easy-to-use reporting system for any off-clock work or an easy way to correct the time records.
Employers have an exception from the strict time-recording rules. This exception is called the de minimis rule. See Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063. Under this rule, employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours when the bits of time are administratively difficult to record. However, this de minimis rule applies only to claims under FLSA (federal law). Please check your state laws for similar or equivalent rules. For example, under California's statutes and regulations, the de minimis doctrine does not apply. See Troester v. Starbucks Corp., 5 Cal.5th 829 (Cal. 2018).
Even if the employer has correctly determined when the work time starts and ends, it may sometimes become challenging to keep the work within those boundaries. For example, there may be occasions when an employer asks an employee to perform work off-clock. ("Hey, could you drop this off on your way home please?" or "Can you unload this truck during your lunch please?"). That is when the work starts creeping outside of the clock-in/ clock-out zone. To record the absence of such creeping is more challenging. Employers can create a red-flag system to intercept any potential wage and hour violations. For example, an easy-to-use reporting system for any off-clock work or an easy way to correct the time records.
Employers have an exception from the strict time-recording rules. This exception is called the de minimis rule. See Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063. Under this rule, employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours when the bits of time are administratively difficult to record. However, this de minimis rule applies only to claims under FLSA (federal law). Please check your state laws for similar or equivalent rules. For example, under California's statutes and regulations, the de minimis doctrine does not apply. See Troester v. Starbucks Corp., 5 Cal.5th 829 (Cal. 2018).
Reporting system
Create a red-flagging system for employees to report the breaks violations
It is essential to maintain records of correct written policies. Employee's Handbook is one of the first written policies that employers should consider. Employee's Handbook should include clear guidelines on work time, payment of wages, breaks (depending on the state), PTO & FMLA (if applicable), and other aspects related to the employment relationships.
The next step after the written policies is to cultivate an atmosphere that not only discourages but also prevents the possibility of off-clock work. In other words, to the extent possible an employer should make it impossible for employees to work off-clock. Examples of compliant wage and hour culture may include, trained supervisors, practices of checking and reminding employees about working only on-clock, posters with explanations about employee's rights, providing to employees the opportunity to complain and report about their off-clock work or about inconsistencies in their timesheets.
The next step after the written policies is to cultivate an atmosphere that not only discourages but also prevents the possibility of off-clock work. In other words, to the extent possible an employer should make it impossible for employees to work off-clock. Examples of compliant wage and hour culture may include, trained supervisors, practices of checking and reminding employees about working only on-clock, posters with explanations about employee's rights, providing to employees the opportunity to complain and report about their off-clock work or about inconsistencies in their timesheets.
Paying
Employers must pay for any missed break, if the employee had not reasonable opportunity to take the break.
Rest breaks are included in the employee's work time. Therefore, the employer pays for the rest breaks. Additionally, if an employee had to miss his rest break, then the employer has the obligation to pay a break premium, which equals one hour of the employee's regular rate for each violation.
Meal breaks are unpaid time. However, if the employee missed a meal break due to the employer's violation, the employer must pay a break premium, which equals one hour of the employee's regular rate for each violation.
Meal breaks are unpaid time. However, if the employee missed a meal break due to the employer's violation, the employer must pay a break premium, which equals one hour of the employee's regular rate for each violation.
- EducateEducate supervisors and managers
Educate employees
Educate the accounting departmentE
Educate supervisors and managers
Your company is as compliant as your most ignorant supervisor
An .
Educate employees
Transparency is your path to growth
Employee handbooks and breaks policies
Orientation materials and attendance sheet
Written reminders to employees
Posters
Orientation materials and attendance sheet
Written reminders to employees
Posters
Educate the accounting department
Payment of wages is part of compliance with the breaks requirements.
Paying the time "worked." Rest breaks are paid. Meal breaks are unpaid.
Paying the premiums. Regular rate v. hourly rate.
Paying on time. Waiting time penalties.
Including in the wage statements.
Paying the premiums. Regular rate v. hourly rate.
Paying on time. Waiting time penalties.
Including in the wage statements.
Resources
Useful links.
Paying for all hours worked (DOL's resource center)
Topical fact sheets of the Wage and Hour Division of the Department of Labor.
Topical fact sheets of the Wage and Hour Division of the Department of Labor.
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