Tag Archives: rest 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 GUIDANCE: California DLSE Updates Its Position On Rest Periods

The California Department of Labor Standards Enforcement (DLSE) recently published updated guidance materials (Rest Periods/Lactation Accommodation) relating to the 10-minute rest period. 

These new materials re-emphasize the DLSE’s previous position that employees must be relieved of all duty during rest breaks and further clarify that employees must be permitted to travel off-site during their ten-minute rest breaks. However, even with this new position, the DLSE did not that “as a practical matter, however, if an employee is provided a ten-minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.”  In addition to the foregoing, the DLSE’s new materials clarify that employers are prohibited from requiring employees to monitor pagers or radios during rest breaks.

The updated guidance materials align the DLSE’s position on rest periods with the California Supreme Court’s 2016 decision in Augustus v. ABM Security Services, Inc. (discussed in our previous article “Gimme A Break, California – A New Look at California Rest Periods”).

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.

Gimme A Break, California – A New Look at California Rest periods

In a recent decision (Augustus v. ABM Security Services, Inc.) the California Supreme Court has reinterpreted what it means to provide California employees with a rest period – and this new interpretation does not bode well for California employers.

Background

This case involved a class of security guard employees. While these employees were provided with a rest period (as required under California law), their employer required the employees to take an “on call” rest period (meaning that the employees were required to take rest breaks with pagers in case there was a need for their services during the break). The employees filed a class action lawsuit against the employer claiming that because of this requirement, the employer failed to provide them with their statutory meal periods.

The Issues Before the Court

There were two questions the California Supreme Court was asked to decide:

  1. Does an employee have to be relieved of all duty during his/her paid, ten-minute, rest period?
  2. Does an “on call” rest period count as a lawful break?

In short, the Court found:

  1. Yes, similar to the California meal period requirement, employees must be relieved of all duties and free from employer control during the paid 10-minute rest period.
  2. No, an “on call” rest period does not count as a lawful break because, by remaining “on call” the employee is under the employer’s control.

Impact on California Employers

This new Court ruling is a game changer for California employers and will require all California employers to rethink their rest period practices by taking the steps:

  1. Remember employees must be relieved of all duty during their rest period. In other words, treat employees who are “on break” the same way you treat employees who are taking their meal periods.
  2. Do not require (or even request) that an employee come and “lend a hand” during their 10-minute break and take steps to avoid interrupting an employee’s rest period. If this means prohibiting employees from remaining at their desks for their rest period, do it.
  3. Schedule employees’ rest periods and take steps to ensure that there is coverage during employees’ breaks.
  4. Train your managers about the Company’s rest period policy and how coverage works during employee breaks
  5. Establish a “rest area” for employees where employees are encouraged (but not required) to spend their breaks and direct managers not to bother employees when they are in that area.
  6. Review your rest period policy and revise, if necessary, to affirmatively state that employees are free from any duty, must take breaks as scheduled, and are prohibited from working, being available to work, etc. during rest periods.

Finally, it is important to remember that failure to provide your employees with a compliant (lawful) rest period means that you will need to pay your employees a 1-hour penalty per day that a non-compliant rest period occurred. Therefore, it is important to take steps to ensure that your rest periods are compliant.

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).