Tag Archives: Meal Period

NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

Good news for certain California trucking companies — California’s meal period and rest break requirements no longer apply to truck drivers who are regulated by the U.S. Department of Transportation’s hours-of-service requirements.

How did this happen?

To understand how this happened, we need to first give a brief history of this issue.

California’s meal period and rest period laws are quite onerous – especially for trucking companies.  These laws require all California employers provide employees with a duty-free 30-minute meal period to begin before the employee completes five hours of work; employers must also provide paid 10-minute duty-free rest breaks for every four-hour work period or “major fraction thereof.”   Among the problems that trucking companies have with complying with these requirements is actually proving compliance with the requirements.  How does one prove that a driver actually took the rest and/or meal period? Continue reading NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

California Employers — Watch Out For These Common Wage And Hour Problems

California’s wage and hour laws are complicated and is constantly changing.  As a result, employers often find themselves running afoul of one (or more) of these laws and facing potential liability.

To mitigate your risk of a wage claim, we recommend that employers regularly audit their wage and hour practices to ensure compliance with California law.  When conducting this audit, make sure you have a clear understanding of the following common problems relating to compensating non-exempt employees:

Overtime And Double Time For Non-Exempt (Hourly Paid) Employees

  • California employers must pay overtime (1.5 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For all hours worked over eight hours in a workday or 40 hours a week
    • The first 8 hours worked on the 7th consecutive day of work in a workweek
  • California employers must pay double time (2 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For hours worked over 12 hours in any workday
    • For hours worked over 8 hours on the 7th consecutive day of work in a workweek

Calculating The Regular Rate Of Pay

  • The regular rate of pay is the employee’s actual rate of pay, which includes the employee’s regular hourly earnings (i.e. hourly rate of pay) plus any additional compensation that must be included in the regular rate of pay – including:
    • Commission payments;
    • Piece rate payments;
    • Non-discretionary bonuses (e.g. productivity bonus, performance bonus, attendance bonus, longevity bonus, cost-of-living bonus);
    • Awards or prizes won for quality, quantity or efficiency;
    • Shift differentials;
    • Premiums paid for hazardous, arduous or dirty work;
    • Non-cash wages in the form of goods, board, or lodging;
    • Pay for non-productive work hours (e.g. rest breaks, waiting time, attending meetings); and
    • Lump sum on-call payments.
  • Payments excluded from regular rate of pay:
    • Premium (or extra) pay for daily or weekly overtime;
    • Premium pay for work on weekends, holidays, regular days of rest or the sixth or seventh day of the workweek (if it is at least 1.5 times the rate for work performed during non-overtime hours on other days);
    • Premium pay for work outside the agreed to hours (if it is at least 1.5 times the rate for work performed during the agreed to hours);
    • Discretionary bonuses;
    • Gifts;
    • Certain payments that are not made as compensation for hours of work (e.g. vacation pay, paid time off, sick time, and reimbursement for business expenses);
    • Payments to a bona fide profit-sharing plan or trust or a bona fide thrift or savings plan;
    • Irrevocable contributions to employee health and welfare plans; and
    • Certain stock options, appreciation rights and purchase programs.

Split Shift Premiums

  • Under the split shift premium rule, an employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.  An employer can use any hourly amount the employee earns above minimum wage to offset the split shift requirement.

Reporting Time Pay

  • “Reporting time pay” is partial compensation for employees who report to work expecting to work a specified number of hours and who are deprived of that amount because of inadequate scheduling or lack of proper notice by the employer. The provisions of the law regarding reporting time pay are as follows:
    • Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, he or she must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
    • If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

Rest Periods

  • Employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof, i.e. 2 hours) worked by an employee.  Employers are not required rest periods when an employee’s total daily work time is less than 3½ hours.  This means that employees are entitled to rest periods as follows:
    • An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
    • An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
    • An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
    • An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods

Meal Periods

  • Any employee who works more than five hours in a day must be provided with a 30-minute unpaid, duty free meal period.   The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
    • If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. This consent should be in writing and signed by both the employee and the employer. If the employee’s workday is more than 6 hours, then the meal period cannot be waived.
  • Any employee who works more than ten (10) hours in a day must be provided with a second unpaid, duty free meal period, also at least 30 minutes in duration. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
    • If the total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).

Timekeeping Requirements

  • Employers must record the beginning and end of each workday and the beginning and end of unpaid meal or other unpaid periods.

Wage Theft Protection Act Notice

  • All non-exempt employees must be provided with a Wage Theft Prevention Notice at time of hire and within 7 days of a change.  A sample notice is available here.

Cellphone Reimbursement (** also applies to exempt employees)

  • Employers must reimburse employees who use personal cellphones for business purposes for both voice and data fees incurred for business purposes.

Paid Sick Leave (** also applies to exempt employees)

  • Employers must provide employees with paid sick leave in accordance with state or, if applicable, local law.

Pay Stub Requirements (** also applies to exempt employees)

  • Employers must provide all employees with an itemized statement of wages that includes the following information:
    • Gross wages earned;
    • Total hours worked by the employee (not required for salaried, exempt employees);
    • For piece-rate employees, the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, and the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, the rate of compensation, and the gross wages paid for that time during the pay period;
    • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item);
    • Net wages earned;
    • The inclusive dates of the period for which the employee is paid;
    • The employee’s name and the last four digits of his or her social security number or an employee identification number other than a social security number;
    • The name and address of the legal entity that is the employer; and
    • All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee.
  • In addition, all employee paychecks must list the address of a specific location within the state where the check can be cashed without a fee.

Vacation Pay (** also applies to exempt employees)

  • Forfeiture of vacation is prohibited in California
    • “Use it or lose it” policies are not permitted
    • All accrued but unused vacation must be paid upon termination

Final Paychecks (** also applies to exempt employees)

  • All employees must receive their final wages within the following timeframe:
    • Immediately upon involuntary termination
    • Within 72 hours if employee resigns without notice
    • On last day of work if employee resigns with at least 72 hours’ notice
  • All wages “due and owing” must be paid with the final wages, otherwise waiting time penalties are assessed.  This includes accrued, unused vacation and/or meal/rest period premiums
    • Commissions or other performance-based pay must be paid as soon as it can be calculated, regardless of when it otherwise would be paid.
  • No deduction may be taken from final paychecks unless legally mandated, authorized in writing by the employee, or for a loss attributable to the employee’s dishonest or willful act or gross negligence (but only if the employer is absolutely positive that it can be proven that the employee was not simply negligent). No balloon deductions for payoffs of employer loans to employees.

NEW CASE: Clarifies Meal Period Requirements For Washington Employers

In a recent decision (Brady v. Autozone Stores, Inc.), the Washington Supreme Court has clarified the employer’s obligations with respect to providing their employees with meal periods and establishing that a meal period was waived.

Prior to this decision, an employer could establish that it met its meal period obligations simply by showing it provided employees with a meaningful opportunity for a meal period. Now, due to the Court’s decision in Brady, Washington employers must ensure that their employees take their meal periods – UNLESS the employer can prove that the meal period was waived via a valid meal period waiver.

The Case

The Brady case is the typical wage and hour lawsuit where a group of employees filed a class action lawsuit claiming (among other things) that they and other employees were prevented from taking their meal periods. The case was filed in federal court.

The federal court denied class certification of the meal period claim – concluding that “employers have met their obligation under the law if they ensure that employees have the opportunity for a meaningful meal break, free from coercion or any other impediment” and rejecting the plaintiffs’ argument that employers are strictly liable whenever an employee misses a meal break.

As a result, the Washington Supreme Court was asked to clarify the law and answer two questions:

  1. Is an employer strictly liable under WAC 296-126-092* (Washington’s meal period statute)? and
  2. If an employer is not strictly liable under WAC 296-126-092, does the employee carry the burden to prove that his employer did not permit the employee an opportunity to take a meaningful break as required by WAC 296-126-092?

The Ruling

With respect to the first question, the Court found that employers are not strictly liable for an employee missing the meal period. Since an employee is permitted to waive the meal period at his/her choosing, the Court found that the employer cannot be held strictly liable for the missed meal period.

With respect to the second question, the Court found that Washington law provided greater protections to employees than simply obligating an employer to give its employees “meaningful opportunity” for a meal period. Instead, the Court found that an employee can prove his meal period claim by “providing evidence that he or she did not receive a timely meal break. The employer may then rebut this by showing that in fact no violation occurred or a valid waiver exists.”

Take home for Employers

This case sends an important message to employers regarding Washington meal periods. Employers can no longer assert that employees were provided with a meaningful opportunity to take a break and chose simply not to do so. Instead, employers must document an employee’s waiver of his/her meal period in writing (via a written meal period waiver). Absence of such a waiver could result in penalties being assessed against the employer.

 

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* The Washington meal period statute provides as follows:

  1. Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer’s time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer.
  2. No employee shall be required to work more than five consecutive hours without a meal period.
  3. Employees working three or more hours longer than a normal work day shall be allowed at least one thirty-minute meal period prior to or during the overtime period.

California Employers – Are You Complying with California’s meal and rest period laws?

California has some of the more stringent meal and rest period rules in the country; and, as evidenced by the increasing number of class actions against employers for meal and rest break violations, California employers continue to struggle with complying with these laws. The consequence of noncompliance can be incredibly expense, as the following employers discovered …

Year Employer Class Action Claim Settlement
2014 City of Los Angeles Employer denied employees off-duty meal periods $26 million
2015 Il Fornaio Employees did not receive meal periods and rest periods $1.5 million
2016 Aurora Vista Del Mar, LLC Employees did not receive meal periods and rest periods $2 million
2016 Parkview Community Hospital Medical Center Employees did not receive meal periods and rest periods $2.55 million
2016 Chinese Daily News Inc. Employees did not receive meal periods and rest periods $7.8 million
2017 TJ Maxx of California, LLC Employer failed to provide employees with meal periods $8.5 million

What are a California employer’s obligations with respect to meal periods?

The California Labor Code (§§ 226.7 and 512) and the California Wage Orders require employers to provide meal periods as follows:

  • A 30-minute, duty free, unpaid meal period to any employee who works more than five hours in a day. The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
    • NOTE: If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. However, if the employee’s workday is more than 6 hours, then the meal period cannot be waived.
  • A second 30-minute, duty free, unpaid meal period to any employee who works more than ten (10) hours in a day. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
    • NOTE: If the employee’s total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).

How is this obligation met?

An employer’s obligation is to provide employees with a meal period. As the Brinker case clarified, this obligation is met by doing the following:

  1. Establishing policies that inform employees of the meal periods (and enforcing those policies when meal periods are missed);
  2. Scheduling meal periods for employees;
  3. Relieving employees of all duty, relinquishing control over their activities and permitting them a reasonable opportunity to take an uninterrupted 30-minute break and not impeding or discouraging them from doing so.

The Brinker court further stated that employers are “not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.”

What is the timing of the meal period?

As stated above, California law requires that employers provide the first meal period no later than the end of an employee’s 5th hour of work, and a second meal period no later than the end of an employee’s 10th hour of work, but what does this really mean?

Simply put, this means that the employee must be provided with a meal period before he/she has worked 5 hours (for the 1st meal period) and before he/she has worked 10 hours (for the 2nd meal period). In other words, for an employee who works from 8:00am to 5:00pm, he/she must be provided the first meal period as follows:

  • Between 8am and 12:59pm (because the first meal period must begin before the employee works five hours or before 1:00 p.m. — i.e., by no later than 12:59 p.m.)

What if an employer fails to provide the meal period?

If an employer fails to provide a meal period (i.e. the meal period is late or the employee’s meal period was not 30 minutes), then the employee is owed a premium wage of 1 hour of pay.

What are a California employer’s obligations with respect to rest periods?

Under the California Wage Orders, employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof) worked by an employee. A “major fraction” language has been interpreted to mean two hours.

 

The wage orders do not require rest periods when an employee’s total daily work time is less than 3½ hours. Therefore, employees must be scheduled for at least 3½ hours in a workday to be entitled to a 10-minute rest break.

This means that employees are entitled to rest periods as follows:

  • An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
  • An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
  • An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
  • An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods

 

Employees must be completely relieved of all duties during rest periods. Additionally, employers provide “suitable resting facilities” for employees to use during work hours, which must be separate from toilet facilities.

Rest periods are considered “on the clock” and are counted toward total daily and weekly hours worked, and must be paid at the employee’s regular wage rate. Employees may be required to remain on the employer’s premises during rest periods, but they cannot be required to remain “on-call” during rest breaks (i.e. vigilant and available for possible interruption during rest breaks). Instead, employees must be relieved of all duties and free from employer control as to how they spend their time during their rest period.

New Standard For Unpaid Meal Periods May Impact Massachusetts Employers

In a recent case (DeVito v. Longwood Security Services, Inc.), the Massachusetts Superior Court set forth a new standard for determining whether an employee’s meal period should be paid or unpaid.

The Case

In this case the plaintiffs were a group of private security officers who worked at housing developments, medical facilities, and colleges. These employees were provided the opportunity to take their meal periods, but were required to remain at their assigned worksite, remain in uniform, and respond to any radio calls they might receive during the meal period.

The employees filed a lawsuit claiming that their meal periods should be paid because the employees were not completely relieved of all work-related duties during their meal periods.

The employer, on the other hand, argued that the meal periods should not be paid because the time the employees’ spent on their meal periods was predominantly for the benefit of the employees (which is the test Court have generally applied for determining whether a break should be paid under the FLSA).

The Massachusetts Superior Court agreed with the employees and held that the standard for whether a meal period should be paid or unpaid in Massachusetts was whether the employees were completely relieved of all work-related duties – i.e. the “relieved-of-all-duties” test. Under this test, Massachusetts employers must pay employees for meal breaks unless employees are completely relieved of all work-related duties during the meal period. In other words, meal periods where employees are required to remain on premises and/or on-call must be paid meal periods.

Take Home For Employers

The Court’s ruling likely impacts many Massachusetts employers. It is recommended that all Massachusetts employers review their meal period policies and practices and ensure that employees’ meal period are unpaid only if the employees are free of all work-related duties during their meal periods. In addition, managers and supervisors should be informed of this change in the law and further directed to carefully consider any restrictions that they might place on employees during the meal period (like requiring the employees to remain onsite or to remain on-call) as such practices may render the meal period compensable.

Finally — Guidance Regarding On Duty Meal Periods!

In a recent decision (Driscoll v. Granite Rock Company), the California Court of Appeal (finally) provides guidance to California employers about on duty meal periods.

In California, an on duty meal period is permissible only when:

  1. The nature of the work prevents an employee from being relieved of all duty and
  2. There is a written agreement between the employer and employee that an on-the-job paid meal period is agreed to.

For several years, the only guidance available regarding the nature of work exception was provided by the DLSE, who opined that the nature of work exception is a limited exception and is narrowly construed.  In fact, the DLSE has said that it only applies in extreme circumstances (like a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site) where it is simply impossible for the employee to take a meal period because there is no one available to relieve the employee (i.e. because the employee is working alone).  However, with this new ruling, employers have more guidance on when an on duty meal period may be permissible.

The Facts

In Driscoll, the plaintiffs were concrete mixer drivers who were provided the option of signing an on-duty meal period agreement, which they all signed.  Prior to signing the agreement, the plaintiffs were also told that if they did not sign an On-Duty Meal Period Agreement and were asked to work through a meal, they would receive one hour of special pay.  Finally, the plaintiffs were also notified of their right to a 30-minute, off-duty meal period.

The plaintiffs ultimately filed a class action lawsuit against their employer for failure to provide the required meal periods.  The company’s asserted defense was the on duty meal period agreement.

The Case

The court found that the employer’s on-duty meal period agreements were lawful and specifically noted that the employer’s “policies regarding meal periods were particularly appropriate in the context of the ready mix concrete industry.”

The opinion used the Brinker decision’s discussion relating to industry practices to support this finding — specifically citing “What off-duty meal practices that will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.”

Relying on Brinker, the Court concluded that “the issue of different industry practices is a factual determination. Here, while on the job, mixer drivers manage a rolling drum of freshly batched concrete at any given time throughout their work day. When a driver is able to take a duty-free lunch period is dependent on the state of the concrete in his or her truck, and the nature of the construction job to which the driver is attending.”

Take Home for Employers

While this case does show support for on duty meal period agreements, employers are advised to proceed with caution before trying to implement on duty meal periods in their own workplace.  The Court made it very clear that the permissibility of a particular on duty meal period arrangement is very fact-specific and is determined on a case-by-case basis.  Before implementing an on duty meal period, it is recommended that employers carefully analyze the positions for which an on duty meal period is sought and seek the guidance of an attorney before taking any action.

Clarifying The California Meal Period Requirement

In a recent court decision (Rodriguez v. EME, Inc.), the California Court of Appeal has further interpreted the term “work period” for purposes of determining the timing of a meal period/rest period in California.

What Is The California Meal/Rest Period Requirement?

By way of review, California law requires employers to provide employees with meal and rest periods as follows:

  • Rest Period: 10 minute rest period for every 4 hours of work or major fraction thereof
    • 3.5 and up to 6 hrs worked—1 rest period
    • More than 6 hrs and up to 10 hrs—2 rest periods
    • More than 10 hrs and up to 14 hrs—3 rest periods
  • Meal Period: 30-minute uninterrupted break that must begin no later than the end of an employee’s 5th hour of work (before working more than 5 hours), and a 2nd meal period to begin no later than the end of an employee’s 10th hour of work (before working more than 10 hours).
    • Note: the first meal period can be waived if the employee works no more than 6 hours in a work day and the second meal period can be waived if the employee works no more than 12 hours in a work day.

Failure to provide employees with the required meal and rest periods in accordance with the legal requirements results in penalties. Specifically, employers are required to pay an employee one hour of pay at the employee’s regular rate of pay for any day in which the employee is required to work during one or more meal periods, or during one or more rest periods.

Significance of the Rodriguez Case

With incredibly specific rules regulating meal and rest periods and when those “breaks” fall within a “work period,” a common question is how employers should define the “work period.” The Rodriguez case answered that question.

Specifically, the Court held that each “work period” should be established by meal breaks. For example, in an 8-hour shift with a single meal break, the preferred schedule requires the provision of a rest break in the middle of each “work period” before and after the meal break.

However, the Court did note that shorter or longer shifts and other factors that render the above-described scheduling impracticable may alter this general rule. Yet, such deviations are only permissible when

  1. The departure will not unduly affect employee welfare, and
  2. The departure is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.

What does this mean for California employers?

Based on this decision, it is clear that in those circumstances where an employee is entitled to more than 1 rest period, the rest periods must fall on either side of a meal period and cannot be combined, regardless of employee preference. It is recommended that employers take the following steps when scheduling employee rest periods:

  1. Determine the number of rest periods to be provided;
  2. Determine the number of meal periods to be provided;
  3. Schedule the employees’ meal periods;
  4. Determine the length of each work period before and after the scheduled meal periods; and
  5. Schedule rest periods in the middle of each work period (as practicable).

California Healthcare Workers Can Waive Their Second Meal Period

On October 5, 2015, California Governor Jerry Brown signed Senate Bill 327 into law. This new law permits California healthcare workers to waive their second meal period – even when these workers work shifts exceed twelve (12) hours.

California Labor Code section 512 requires employers to provide two meal periods to employees who work more than ten hours per workday. Under section 512, employees are able to voluntarily waive the second meal period, but only when their shift is less than twelve hours.

In 2000, the Industrial Welfare Commission created a special exception in the Wage Orders for healthcare workers (Wage Order #4 and Wage Order #5) wherein healthcare workers were permitted to waive their second meal period when they worked more than eight (8) hours in a day. This special waiver was found to be unlawful by the California Court of Appeal in Gerard v. Orange Coast Medical Center.

The passage of SB 327 overturns Gerard v. Orange Coast Medical Center and renders its ruling inapplicable. This means that the second meal period waiver provisions in Wage Orders 4 and 5 remain valid and enforceable. This law was enacted as urgency legislation; therefore its provisions are effective immediately.

Mandated Travel Time During Lunch Break Must Be Compensable

Where an employer designates a location for meal breaks, employees must be compensated for any time spent traveling to that location.  This factual situation came before the court in Naylor v. Securiguard, Inc., where security guards who were required to travel off-site for meal breaks in order to maintain the image of “professionalism,” sued for unpaid wages associated with their travel time.

The court held that because the round trip travel time was upwards of twelve minutes, it substantially cut into the guard’s 30 minute meal break and therefore required compensation under the Fair Labor Standards Act.

Employers should note that mandated travel may not only require employees be paid for their travel time, but failure to pay them could result in additional liability for unpaid overtime as a result of back pay.  Thus, it is always best to provide employees with a meal period free of any work-related obligations.