As of April, 2012, the California Supreme Court and San Diego employment law have deemed that workers are legally entitled to meal breaks. According to California Labor Law 226.7: “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” An employer who has denied meal breaks to workers may be violating the law.
If an employer pressures an employee to work during a break, this may constitute denial of break. Consult a San Diego employment lawyer to determine where you stand as an employer or an employee when it comes to denied meal breaks.
According to 29 CFR 785.18 (Code of Federal Regulations), a legal unpaid meal break is determined by the following criteria:
- A break of at least 30 minutes is provided, without interruption
- The employee is permitted to cease all work and is relieved of all work-related responsibilities for at least 30 minutes
- The employer cannot dictate what the employee does or where he or she goes during the break
- An employee can take a break without discouragement or repercussions from the employer
These criteria establish a legitimate meal break, during which an employee is not paid. If an employer fails to meet any of these criteria when proving a meal break, the employer may be liable for violating San Diego labor law. Keep in mind that even if an employer’s company has a policy to permit 30 minute, uninterrupted and unsupervised meal breaks, the employer cannot legally encourage an employee to work during a break. If you are involved in a case regarding denied meal breaks, you are advised to contact an employment lawyer with detailed knowledge of San Diego labor law.
Meal Breaks, Hours Worked, and Waivers
According to California Labor Code 512(a), “In California, an employer may 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 thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is not more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived.”
In other words, San Diego employees must be permitted to take a 30 minute meal break every five hours, and a second 30 minute meal break if an employee works a 10 hour shift in one day. The only situation in which an employer may offer a waiver is if an employee is working a complete shift of no more than six hours. In this case, an employee may choose to sign a written waiver, forgoing his or her 30 minute lunch break.
Keep in mind that, according to the California Department of Industrial Relations, “If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period.”
If an employer encourages an employee to waive his or her meal break for a shift that exceeds six hours, the employer is liable for violation of San Diego employment law. An employee can only forgo a meal break if he or she chooses to do so without coercion, and the employee must be compensated at the regular rate for work done during the meal time.
In some circumstances an “on duty” meal break can be legal, even if an employee is working for more than five hours a day. An on duty meal break is described within California Code of Regulations, Title 8, 11040.
According to IWC Orders 1-15, Section 11, and Order 16, Section 10: “Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an ‘on duty’ meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, an employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are 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.”
A worker cannot be forced to take an on duty break, and can still legally demand that an employer provide someone to cover his or her tasks during a meal break. However, the employer will not be penalized if the worker willingly signs an agreement accepting an on duty meal break. The worker remains on the clock for this on duty break, and may receive overtime compensation as a result. If a worker does sign an agreement accepting an on duty meal break, he or she can revoke this agreement at any time, and can legally demand a full meal break relieved of all work-related responsibilities.
An employer can legally demand that an employee remain on work premises during a meal break. However, since an employee is therefore not allowed to do anything he or she likes with this time, the break is considered on duty, and the worker must be compensated for his or her time, at the regular rate. If an employer requires an employee to remain at the work location during a meal break, a suitable facility must be provided for workers to eat meals.
According to the Industrial Welfare Commission Wage Orders, suitable facilities indicate a “sheltered place with facilities available for serving hot food and drink or for heating food or drink, and for consuming such food and drink.” Failing to compensate employees for a meal break they are required to take on work premises, or failing to provide adequate facilities, may constitute a violation of San Diego labor law.
If an employer forces a worker to take an on duty meal break, does not compensate him or her for this time, and does not allow the employee to revoke the agreement to accept an on duty meal break, the employer is liable for violating San Diego employment law. If you are an employer facing these charges, or an employee who has been wrongly denied your right to a meal break, you are advised to contact a San Diego employment lawyer to assist you in your case.
Meal Breaks that Violate San Diego Employment Law
Some employers may try to avoid providing meal beaks for employees working shifts of six hours or more. In many circumstances, an employer may be violating San Diego employment law by encouraging or forcing an employee to take an on duty meal break at a job that, in a court, would not qualify as eligible for on duty breaks. For example, a clerk in a shop, working standard operating hours, cannot legally be denied an off duty break just because an employer does not want to pay another employee to come in and take over. If you believe the work you do does not demand that you take an on duty meal break, consult a San Diego employment lawyer.
An employer may also try to get an employee to waive their right to a meal break. This is up to the discretion of the employee if he or she is working a shift of six hours. An employer who attempts to coerce a worker into waiving a meal break on a shift of six or more hours is guilty of violating San Diego labor law. For a worker who is on duty for more than six hours, even a signed agreement waiving the right to a meal break will be useless in court.
Meal periods occurring at unconventional times have specific regulations in order to be recognized as legitimate. According to IWC Orders, “if a meal period occurs on a shift beginning or ending at or between the hours of 10 pm and 6 am, facilities must be available for securing hot food and drink or for heating food or drink, and a sustainable sheltered place must be provided in which to consume such food or drink.”
In other words, employees must be provided with a safe and easily accessible space to take a meal break if they are required to do so at an unconventional time. Failing to provide this space may constitute a violation of San Diego employment law. If you are an employee who is required to take a meal break during these times and are not provided a satisfactory space in which to do so, you are advised to contact a San Diego labor lawyer. Similarly, employers who believe they are being wrongly accused of denying a satisfactory space to workers should also seek legal advice.
It is a violation of San Diego employment law for an employer to make a worker take a meal break at the very beginning of a shift, or at the very end. For example, if an employee works a shift beginning at noon and ending at 8:00 PM, an employer cannot force the employee to take a meal break at noon or at 7:30 PM; therein denying an employee a meal break, and instead sending the worker home early or having him or her come in late. This does not give an employee a chance to take a break from work-related responsibilities, rest, and eat a meal during the work day. Employers found guilty of this are in violation of San Diego labor law.
Liability During Unpaid Meal Breaks: San Diego Labor Law
If an employer meets all requirements in providing a worker an unpaid meal break during which case he or she can abandon all work-related duties and leave the premises, the employer is unlikely to be liable for anything that happens to a worker during an unpaid meal break. For example, if an employee leaves work premises to eat a meal and is in a car accident, the employer is unlikely to be found liable for damages; however, this result is not guaranteed. If you encounter this problem as an employer or a worker, talk to your San Diego labor lawyer about potential outcome of your case.
If an employer encourages a worker to take an on duty meal break, during which he or she maintains work-related duties, then the employer may be liable for any accidents or incidents that occur during this on duty break.
An employer may also be liable if the conditions of an unpaid meal break are deemed unsafe; for example, if the employer requires the worker to take a meal break at an unorthodox and potentially unsafe time of day or night.
If a worker engages in illegal or prohibited activity during an unpaid meal break, the employer is unlikely to be found liable, unless the employer has instructed the worker in the illegal activity. If illicit activity occurs during an employee’s unpaid meal break, the employer can most likely terminate the employment status of the worker without legal repercussions. Employers and workers alike should keep in mind that consuming alcohol during meal breaks or at any time during working hours is considered illegal, and can result in liability and/or termination.
If you are a worker who has experienced an accident during a meal break, talk to your San Diego labor lawyer about whether or not your employer is liable. If you are an employer who is being taken to court due to unpaid meal break liability, an experienced San Diego employment lawyer will be essential in demonstrating whether you were responsible for what occurred during the break.
Compensation for Denied Meal Breaks: San Diego Labor Law
According to California Labor Code 226.7, “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest period is not provided.”
For example, if an employee making $8 per hour works an eight hour shift, and does not receive a meal break, the employer must compensate the worker by paying him or her $8 extra for each day the meal break is denied. If an employee is supposed to receive two meal breaks a day for working a shift of 10 hours or more, the same compensation is due- the employee is entitled to pay for an additional hour of work. This is because this penalty is meted out per day, rather than per break that is denied.
If you are an employee who has been denied your right to an unpaid meal break relieved of all duties, or if you are an employer who has been wrongly charged with violating these rights, contact a San Diego labor lawyer. Failing to meet these requirements is likely to be viewed in court as a violation of San Diego employment law, and can result in severe consequences for an employer and substantial benefits for an employee.
Keep in mind that if an employee is denied a meal break, he or she may receive overtime compensation. For example, if an employee works an eight and a half hour shift each day and misses a meal break due to a busy workplace or no one being able to take over, the employee is entitled to an additional hour’s pay, as well as overtime compensation for the extra half-hour worked, which, in the case of a minimum wage employee in San Diego, entitles that worker to overtime payment of $6 for the additional half hour worked. Failure to compensate employees who miss a meal break with overtime payment, if necessary, is also a violation of San Diego labor law.