In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw share best practices and discuss the importance of strictly following meal and rest period laws.
Meal and rest periods are one of the requirements under the California Industrial Wage Commission Wage Orders that employers need to follow, Frank tells listeners. Under the law, employers need to make sure that hourly employees take their rest breaks.
But what if the employee doesn’t want to take a break or wants to take it later in their shift? The Wage Orders are very rigid, requiring that a meal break be taken within 4 hours and 59 minutes into an employee’s shift, she explains.
The rule is presenting a new problem as due to the COVID-19 pandemic many employees are now working from home and employers can’t monitor their rest and meal breaks. In some instances, employees fail to take breaks and in others, employees take more time than they should have, Shaw points out.
“It’s really low-hanging fruit for plaintiffs’ lawyers,” she says.
‘Death Knell’ for Rounding
The rules surrounding meal breaks and rest periods have tightened recently.
Earlier this year, the state Supreme Court in Donohue v. AMN Services, Inc. held that rounding time for meal breaks is not permitted. The court stated that employees need a minimum 30-minute meal break, Frank says. This means that a 28-minute or 29-minute meal break is not permissible.
The ruling is “the death knell of rounding,” Shaw adds. And it’s a great reminder, she says, for employers to make sure they have a meal break and rest period policy in place that addresses missed or shortened breaks.
Setting a Policy Is Important
While businesses may be too busy simply trying to stay afloat, the rules on meal and rest breaks are “fundamental,” so Shaw urges employers to take a moment and think about what their policy states and how the organization is putting it into practice. Employers should also ask themselves whether their managers and supervisors know how they are supposed to handle these rules.
Frank agrees. She points out that many employers have successfully defeated meal and rest break claims because they had a policy in place and an employee handbook that clearly stated what the company requirements were. These documents were evidence to support that the employer was indeed following the law.
Most importantly, Frank stresses, these employers were implementing their policy—it’s not enough to simply have a policy or handbook.
Time to Remind Employees of Rules
Due to the COVID-19 pandemic, many employers have been focused on transitioning their workforce to work remotely. Moreover, many parents have been working double, as they must care for their children due to school closures. So, there’s a lot of liability lying around, Frank says.
Now is the time for employers to send a memo to their workers, reminding employees about the rules of taking rest and meal breaks, Shaw says.
Moreover, labor laws do not explicitly exclude exempt employees from the meal and rest break rules. As a precaution, Shaw recommends that employers also encourage their exempt employees to take breaks.
No employer should have a compliance issue in this area, Shaw stresses. Employers need to make sure their wage statements are correct, that the overtime pay calculations are correct, and that employees are given rest and meal breaks.
“This is the stuff that you should never have a claim about. There’s more complicated things that are going to be harder to defend and harder to comply with,” she says.
Frank agrees, adding that the law provides “no wiggle room.”
Lastly, Shaw shares that she has read a lot of guidance and information that is incorrect and wrong. She urges employers to seek professional guidance on labor law issues to ensure they are getting accurate and current information.
