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(December
2000)
Understanding Rest and Meal Periods
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October 1, 2000 |
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All employers
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| As reported in the recent
edition of November 2000 The Strategic EMPLOYER newsletter,
on October 1, 2000, the Industrial Welfare Commission
published the new Wage Orders covering virtually all
employees in California. The Wage Orders provide that
non-exempt employees must be provided with minimum rest
periods and at least a thirty-minute meal period. For
the first time, the Wage Orders also provide for an automatic
penalty to be paid to employees for each day in which
rest periods and/or meal periods are missed. As a result,
substantial confusion has arisen among employers that
this bulletin attempts to resolve. Waag and Co. has researched
this issue with the DLSE and hopes that this bulletin
will answer most employers’ questions. As always, please
do not hesitate to contact Waag and Co. regarding any
specific issue you may have. |
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Discussion
(Rest Periods)
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All non-exempt employees must be
provided with one rest period for each four hours worked (or
major portion thereof). Such rest periods must each be a minimum
of ten minutes, and must occur as close to the mid-point of each
four-hour work period as practicable. Accordingly, if an employee
works eight hours in the day, the employee must be provided with
at least two, ten minute rest periods; the first one occurring
approximately two hours into the workday, and the second occurring
midway through the second half of the workday (i.e., after about
the sixth hour worked).
For each day the employee
does not take one or both of the required rest periods,
the employer must pay the employee an additional one hour
of pay at the employee’s regular hourly rate as a “penalty”.
Note that there are no provisions for "excusing" a missed
rest period, such as an emergency or the employee declines
to take the rest, etc. If the rest period is missed, the
penalty MUST be paid. |
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Discussion
(Meal Periods)
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Similarly, all non-exempt employees
who work more than five hours in a given workday must be provided
with a meal period for that day. The meal period should occur
about the mid-point of the employee’s total workday. The meal
period must be a minimum of thirty minutes. However, when a work
period of not more than six hours will complete the day’s work
for the employee, the employee may waive the meal period with
the consent of the employer, so that the employee may end his/her
shift earlier. Otherwise, the meal period is required.
If the employee does not get
a required meal period, the employer must pay the employee
an additional one hour of pay at the employee’s regular
hourly rate as a "penalty". This is in addition to any
penalties for missed rest periods. However, if the non-exempt
employee works five hours or less, or if the non-exempt
employee works six hours and waives the meal period, then
there is no employer penalty, because a meal period was
not required.
The employee must be entirely
relieved of all duty and be free to leave the premises
during the meal period. If the employee is required to
remain on-site or within extremely close range, then the
employee is still subject to the employer’s control and
therefore not entirely relieved of duty. If the employee
is not entirely relieved of all duty, the time is considered "on-duty" and
must be paid as time worked. This is true even if the employee
is sitting undisturbed while having lunch for the half
hour or more meal period.
The employee would receive
the one-hour penalty payment for the failure to be relieved
of all duty for a meal period. As a result, the half-hour "on
duty" break would cost the employer an hour-and-a-half
of pay. This is why it is important to encourage employees
who can be relieved of duty to leave the work site for
their meal period and not to eat at their work stations;
otherwise, there can be confusion as to whether or not
the employee was truly relieved of duty or is entitled
to the penalty payment.
One Exception: The
new rules provide for one exception to the requirement
of paying the one-hour penalty for an "on-duty" meal period.
When the nature of the employee’s duties require that the
employee cannot be relieved of all duty during the meal
period, the employee may agree to an "on-duty" meal period.
The classic example of such a job is a night-time security
guard; the guard cannot leave the facility unattended,
and so must remain on duty during his/her meal period.
The "on-duty meal agreement" must be in writing and must
state that the employee may revoke this agreement at any
time. If there were a legitimate "on-duty meal agreement," then
the only change would be that the one-hour penalty would
not be payable. The employee still must have a meal period
(albeit on-duty) and be paid for all of this time. (Waag
and Co. clients may contact us for a sample On-Duty Meal
Agreement).
Several points must be emphasized
in order to properly understand and implement an "on-duty
meal agreement." FIRST, since the employee is on duty,
it is time worked and must be paid as such. SECOND, the
nature of the employee’s job duties must truly preclude
being relieved of all duty. It is not sufficient that the
enterprise is just too busy for people to really take a
break and be free to do as they please for the period,
or that it would be more convenient to skip the break.
THIRD, even when there is a legitimate basis for an "on-duty" meal
period, there still must be a meal period. Although the
employee may be subject to the employer’s control, s/he
must still be permitted to stop all meaningful work and
have at least thirty uninterrupted minutes to eat, and
the time must be paid. For example, the night-time security
guard would be able to eat in relative peace; but if an
emergency interrupts the meal period, the employee must
be allowed to complete the break once the emergency is
over. Another example of a legitimate "on-duty" meal period
would be where an employee cannot leave a machine fully
unattended, but must be nearby while having a meal period
in case of a malfunction. If the meal period is skipped,
the penalty must be paid, even if there is a legitimate "on-duty
meal agreement" in place.
Finally, there is a question
regarding the employee’s right to revoke the "on-duty meal
agreement." A Senior Deputy Labor Commissioner of the Division
of Labor Standards Enforcement recently confirmed that
in order for an "on-duty meal agreement" to be valid, the
nature of the employee’s duties must truly prevent the
employee from being relieved of all duty. Thus, in the
case of the hypothetical night-time security guard, if
the guard were unwilling to remain on-duty for the meal
period, s/he could be terminated for unwillingness to perform
a required job function. Given that the "on-duty meal agreement" can
only be legitimate where the job requires it, AND you can
fire an employee for refusing to fulfill this requirement,
then under what circumstances could an employee exercise
this "right" to revoke the agreement? AT THIS TIME, THERE
IS NO ANSWER TO THIS QUESTION; employers should contact
qualified employment counsel before taking any action against
an employee who wishes to revoke an "on-duty meal agreement."
All of the penalties discussed
above must automatically be paid to the employee when the
rest and/or meal periods are missed, just as overtime premiums
must automatically be paid. When breaks are required, they
cannot be waived by the employee. Additional breaks may
be required when employees work in excess of eight hours
per day. Employers should consult with qualified employment
counsel to ensure that their practices conform to these
new requirements. |
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Employers must be sure that employees
understand that their breaks are mandatory and then enforce the
requirement that breaks be taken. This will require diligent
management so that employees do not simply grant themselves significant
pay raises via the penalties. To avoid confusion about whether
or not any break was taken, employees should note the rest periods
they take on their time cards. It is not necessary to re-program
time clock systems; this can be documented merely by having the
employees indicate their rest periods by hand on the back of
the card. Of, assuming that the requirement to take these breaks
has been sufficiently reinforced among the employees, employers
may treat breaks as presumably taken and require employees to
report (in writing) any missed breaks and the reason the break
was missed.
Employees must also be required
to clock-out or sign-out for their unpaid meal break. In
order to prevent an employee from claiming an unauthorized "on-duty" meal
period, encourage employees who can be relieved of duty
to leave the work site for their meal period and not to
eat at their work stations.
Before implementing any "on-duty
meal agreements," confer with qualified employment law
counsel to ensure that there is a legitimate basis for
such an agreement. Where your business is such that meal
periods may be unduly disruptive to your business, but
an "on-duty meal agreement" is not permissible under the
rules (such as a restaurant not having enough wait staff
to cover a half-hour break), consideration should be given
to the costs and benefits of rearranging staff to ensure
that the breaks are given versus adding the extra hour "penalty" payment
to your cost of doing business.
This bulletin is a general
overview of the subject matter, and is not meant to provide
professional opinions regarding any specific case, matter,
or set of facts, or to substitute for the professional
advice of Waag and Co. Instead, please contact Susan
S. Waag, Esq. for additional information.
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