MEAL BREAK REQUIREMENTS MUST BE STRICTLY ENFORCED
California law requires that employers “shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.” Additionally, if the employee works 10 or more hours, a 30-minute meal period that begins no later than the end of the 10th hour of work also must be provided. (Labor Code Section 512(a)).
There are limited exceptions to these requirements (e.g., if the employee would conclude their work day by the start of the 6th hour of work no meal period need be provided), but an employer should presume that the meal breaks must comply with the strict requirements of the law.
When Are Meal Breaks Actually Required to Begin?
Many believe that to comply with the law, a meal break must begin by 4 hours and 59 minutes into the employee’s shift. However, there is no statute, regulation, or Labor Commissioner opinion that expressly mandates that meal breaks start no later than 4 hours and 59 minutes into an eight-hour shift. However, this “4:59” practice is based on a commonly recognized best practice to avoid the strict liability of a meal break violation.
Under this “4:59” concept the below chart details how the hours of work are counted for meal break timing.
Failure to Follow Strict Requirements Results in Liability
If an employee is not provided with the right and opportunity to timely take their 30 minute duty-free, uninterrupted meal break, the employee must be paid a penalty of one hour of their regular hourly rate of pay as a “wage premium.” (Labor Code Section 512.1(c)). The meal period penalty must be paid in the pay period in which the violation occurred. Failure to provide the meal period penalty can result in further penalties for failure to pay wages when due, which results in an inaccurate wage statement, which brings additional penalties.
Rounding Meal Break Time Not Permitted
While the concept of time rounding is currently permitted for the start and end of an employee’s work shift (though it is likely that a California court will soon rule that such rounding practices are not be permitted), time rounding for meal breaks is absolutely not permitted. In a 2021 case, the California Supreme Court expressly stated that employers could not round the time-clock punches for meal breaks. (Donohue v. AMN Services, LLC, 11 Cal.5th 58, 275 Cal.Rptr.3d 422)
The Court commented that even small time increments are crucial to determining whether a meal break time punch is compliant. “To avoid liability, an employer must provide its employees with full and timely meal periods whenever those meal periods are required,” the California Supreme Court said, noting that “even a minor infringement of the meal period triggers the premium pay obligation.”
It is critical that employees honestly record their meal breaks and not simply document the exact same time every day as such calls into question the credibility of the record keeping. Time records which show meal breaks starting every day at precisely the same time (e.g., 1:00:00 p.m.) for all employees will be suspect and invite examination of time-keeping practices.
Because meal break violations often form the basis of Class Actions and Private Attorneys General Act (PAGA) claims, it is more important than ever for employers to closely manage and monitor their employees’ meal breaks and the time keeping for such breaks.
Employees Permitted to Leave the Premises
During meal and rest breaks, employees must be relieved of all of their duties and must be free to leave the premises. If the employee must remain on the work premises during the meal break, the employer must pay the employee for the entire meal period and a meal period penalty of one additional hour of pay.
PAYING WAGES WEEKLY, BI-WEEKLY OR SEMI-MONTHLY?
If an employee files a Private Attorney General Act (PAGA) lawsuit, the employee will be seeking the recovery of penalties that are associated with various violations of the Labor Code, and the penalties are assessed per pay period, per employee.
For this reason, it is strongly recommended that the payroll for employees be either bi-weekly or semi-monthly as opposed to weekly. A weekly payroll equals 52 pay periods annually; whereas a bi weekly payroll has 26 pay periods and a semi-monthly payroll has 24 pay periods.
If, for example, the PAGA penalty is $100, the difference in the penalty assessment would be:
- Weekly: $5,200
- Bi-Weekly: $2,600
- Semi-Monthly: $2,400
This becomes significant when the period of liability is over several years and is based on the total employee headcount.
For example, if the PAGA period is 3 years, and the employer has 100 employees (both current and former) during the PAGA period, the penalties would be:
- Weekly: $100 x 52 x 100 x 3 = $1,560,000.00
- Bi-weekly: $100 x 26 x 100 x 3 = $780,000.00
- Semi-Monthly: $100 x 24 x $100 x 3 = $720,000.00
Because the penalties can be assessed based on each violation, it is imperative to take steps to ensure strict compliance with the Labor Code requirement and to minimize the potential liability, it is recommended that employers implement a bi-weekly or semi-monthly payroll period, even if the employees prefer a weekly payroll period.
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