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Meal & Rest periods        

VIOLATIONS OF EMPLOYEE RIGHTS TO MEAL AND REST BREAKS CAN BE EXPENSIVE

A: An employee who is not provided meal or rest break is usually entitled to additional pay of one hour of their regular wage. In some cases, the value of this claim is substantial enough to be worth claiming against the employer.

California law provides that an employee must receive a 30-minute meal break for every 5 hours of work. The 30-minute break is not paid and is not included in the computation of the workday hours. However, if the day’s work will be completed in no more than 6 hours, the law allows the employer and employee to agree to waive the meal break.

Unless the employee is relieved of all duty during the 30-minute meal break, it will be considered “on-the-job” and counted as time worked. On-the-job meal periods are permitted when (1) the nature of the work prevents the employee from being relieved of all duty; (2) there is written agreement between employer and employee for on-the-job meal arrangement; and (3) the on-the-job meal period is paid. If one of these 3 requirements is absent, the employer may be considered in violation of labor laws. The employer who violates the meal break rule may be liable for penalties in addition to on-the-job meal break compensation.

Rest breaks must be authorized in 10-minute duration for every 4 hours of work, or major fraction of 4 hours. A rest break need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours. Unlike the meal period, the time allotted for rest period is counted as minutes or hours worked.

According to the Department of Industrial Relations, the employer has an affirmative obligation to ensure that workers are actually relieved of all duty during their breaks. This duty requires the employer to implement procedures or systems that ensure compliance by every worker and their supervisors and managers. Simply assuming that the worker has taken his/her meal or rest break is not an adequate compliance with this requirement.

If the employer fails to provide a meal or rest period, it must pay the employee an additional hour's wage at the regular hourly rate for each day the rest break is not provided. The employee can claim this compensation for as long as four years from the time the lawsuit is filed.

Additional Claims May Be Included
Interest. Employees who claim any unpaid wages are also entitled to interest from the time the wages are earned. For example, if an employee claims additional wages for unprovided meal breaks for the past 4 years, interest on the amounts earned may be claimed from the time each payment was due.

Attorneys’ fees. To make the claims process less difficult for the employee, the law shifted the financial burden of the claims process to the employer. The employee who is entitled to recover unpaid wages may also recover reasonable attorneys’ fees that the employee incurred in the enforcement of the claim. In a recently decided case, an employee who won an $11,000 verdict was found to be entitled to over $800,000 in attorneys’ fees. Where an employer's unreasonable legal tactics and efforts to hinder recovery of employee's wages cause the employee to incur attorneys’ fees that are not commensurate to the just claims, it is the employer who should bear such fees.

Costs. Aside from attorneys’ fees, the employee is also entitled to the costs incurred in pursuing his or her claim. These costs include court fees, interpreter, court reporter, and experts' fees which are usually expensive if they are to be paid for by the employee out of pocket or from wages that can be recovered.

Waiting Time Penalty. When an employee is terminated or resigns from the job, he or she must be paid all the wages that are due within 72 hours from the notice of termination. Any employee who is not paid the wages that are due is entitled to a “waiting time penalty” equivalent to all the wages earned in one day multiplied by 30 days.

Violators Beware
Employers who disregard meal and rest break rules to save on labor costs may be risking greater amounts in potential penalties. For example, Wal-Mart has been ordered to pay huge amounts of wage claims for not providing breaks to employees. A California jury ordered Wal-Mart in 2005 to pay $172 million for rest breaks violations. The following year, it was hit with a $78.5 million judgment by a Pennsylvania jury. It also settled a similar case in Colorado for $50 million last year.

© Law Offices C. Joe Sayas, Jr.