Meal and Rest Period Compliance: Avoiding Class Action and PAGA Liability By: Erica Rosasco

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Employers that violate meal and rest period laws can incur substantial costs, including statutory damages, civil penalties, the recovery of attorney fees and other litigation expenses, and enforcement proceedings funded by the state government.

In addition, owners and supervisors may be subject to individual liability.  We continue to see employers being hit with wage and hour class actions and Private Attorney General Act (PAGA) actions.  It only takes one disgruntled employee to sue on behalf of all current and former employees.  Keep in mind that PAGA actions are not stopped by arbitration agreements.  Below are some “nuts and bolts” that surround meal and rest period laws in California.

Meal Periods

In 2012, the California Supreme Court, in Brinker Restaurant Corp. v. Superior Court, held that employers must provide an uninterrupted meal period, but were not obligated to ensure that their employees took them.  Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  This case highlights the importance of accurate written meal period policies, which is something employers in all industries can institute immediately.

           

Brinker discussed various requirements of meal periods in California, including:

 

• Employers must provide nonexempt employees with a meal period of no less than 30 consecutive minutes for any work period of more than five hours.  Because the 30-minute meal period is a minimum that should not be cut short, employers should allow extra time for employees to walk to/from the worksite to the rest area and for handwashing or donning/doffing of protective gear. 

• When the work period does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. Employers should document in writing any meal period waiver agreements. Avoid seeking waivers when you have a crew, as employees may later claim the waiver was not truly voluntary. 

• The meal period must begin before the end of the fifth hour worked; that is, no later than the start of the employee's sixth hour of work.

• Employees who work more than 10 hours must be given a second meal period of not less than 30 consecutive minutes. The meal period must begin before the end of the tenth hour worked. Employees who have not waived the first meal period and who will work more than 10 but fewer than 12 hours during their shift may waive the second meal period. The waiver should be in writing and completed prior to the second meal period. 

• Employees must be relieved of all duty and should not perform any work during meal periods.  Do not allow employees back into the work area until the meal period is over. 

• Unpaid meal periods must be uninterrupted, and employees must be able to leave the employer's premises during their meal period. This means that employees at remote worksites should be free to leave the premises even if they could not return during the 30-minute period.  Returning late from a meal period is a disciplinary issue. 

• Employers must not impede or discourage employees from taking their meal periods.  However, Brinker makes it clear that employers are not obligated to police meal periods. When you have crews of employees, the best practice is to strongly enforce meal and rest period policies to avoid arguing about it later in a lawsuit. 

• If the employer fails to provide an employee with a complete, duty-free 30-minute meal period, the employer must pay the employee one hour of pay at the employee's regular rate of compensation for each workday in which a meal period is not provided.

 

Rest Periods

 

The California Supreme Court issued a long-awaited decision in Augustus et al. v ABM Security Services Inc. (2017) 2 Cal.5th 1137, clarifying employer obligations for rest periods (“breaks”).  The Court considered whether employee breaks are intended to be “off duty,” within the same meaning generally used for meal periods, and whether remaining “on call” during a break is “on duty,” regardless of whether the employee is called upon to perform any work.

 

The case involved security guards who were instructed, even during their breaks, to keep their pagers and radios on and to remain vigilant and responsive to calls when needs arose. If an employee was interrupted during a break, the employee could restart the break and take a complete, uninterrupted break. If the employee was not interrupted, the employee was considered to have taken a compliant rest break.

 

The Court determined it was contradictory to require employers to relieve employees of work duties, but still allow the employer to exert control over employees’ break time. Under the ABM policy, the employees were instructed to remain ready and able to respond to work during their breaks, which affected the employees’ freedom to use breaks for their own purposes. The Court found this level of control incompatible with the definition of a rest period. The Court concluded that during required rest periods, an employer must relieve employees of all duties and relinquish control over those employees.  Consequently, the Court found in favor of the employees and upheld the $90 million verdict.  Notably, the Court did so despite the absence of any evidence that any employee was interrupted and called back to work during a rest period.

 

Employers are obligated to relieve employees from all duties during their breaks. In addition, employers must reevaluate their policies to ensure that they are not exerting control over employees during this paid period of non-work time. An internal policy that requires an employee to carry an electronic device for contact, to be available, to monitor the premises, etc. can be construed as control and leave an employer open to liability.  In addition to relieving an employee of all duties and relinquishing control over employees, employers should note the following:

 

• Employees are not entitled to a rest break if they work a shift of less than 3.5 hours.

• Employees are entitled to a total of 10 minutes rest for shifts from 3.5 hours to 6 hours in length; 20 minutes for shifts of more than 6 hours up to 10 hours; 30 minutes for shifts of more than 10 hours up to 14 hours; and so on. However, rest breaks cannot be combined or tacked on to meal periods.

• The rest period must be counted as hours worked and may not be deducted from an employee's wages.

• Employers should make a good faith effort to authorize and permit rest breaks in the middle of the work period.

• Employers may deviate from this preferred course where practical considerations render it infeasible.

• Generally, in an eight-hour shift, one rest break should fall on either side of the meal break.

• Employers should not allow employees to leave early in lieu of taking a rest break. 

• Employees must allow employees to leave the premises during a rest break.  Failing to return on time is a discipline issue. 

• If the employer provides a rest area, the period of rest does not begin until the employee arrives at the rest area. Allow extra time for walking to/from, hand washing and donning/doffing protective gear.

• If the employer fails to provide an employee with a compliant rest period, the employer must pay the employee one hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided.

If you need assistance with meal and rest period compliance, contact Erica Rosasco at McKague Rosasco LLP. 

***Presented for informational purposes only.  This does not create an attorney-client relationship or substitute for legal advice.  You should consult with your legal counsel for legal advice. ***