Perhaps more than any other state, California employers must carefully consider their compliance obligation given the complexity of California wage and hour laws. Aside from risks involved in managing meal and rest periods, taking automatic deductions and rounding time and determining appropriate overtime rates of pay, California employees should also consider the impact of piece rate compensation practices and alternative workweek schedule arrangements.
Meal Period Requirements and Penalties
California requires employers to provide employees the reasonable opportunity to take an uninterrupted 30-minute meal period after no more than 5 hours work, except when the total workday is less than 6 hours and the employer and employee mutually consent to waive the meal period. The DLSE maintains that the meal period must begin before the end of the 5th hour of work. This means if an employee begins work at 9:00 a.m., they must be permitted to take a 30-minute meal break no later than 1:59 p.m.
California law also requires employers to provide employees with a second, uninterrupted meal period of at least 30 minutes if an employee works more than 10 hours per day. If an employee works no more than 12 hours, the employer and employee may mutually agree to waive the second meal period, but only if the first meal period was not waived. To satisfy the second meal period requirement, the employee must begin the meal period before the end of the tenth hour of work. So, if the employee begins work at 9:00 a.m., they must be permitted to take the break no later than 6:59.
If the employer fails to provide a meal break by the end of the fifth (or tenth) hour, the employer must pay a penalty of one additional hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. This meal penalty also applies when an employee takes less than a 30 minute meal period regardless of when the employee takes a meal break.
If the employer and employee mutually consent to waive the meal period (i.e. the employee's workday is less than 6 hours, or less than 10 hours and the first meal period was not waived), it is best practice for employers to have employees sign an agreement which clearly outlines the employee's rights and states that the employee is voluntarily waiving their right to a meal break.
Sample forms for this purpose as well as "on-duty" meal periods are available on FormSource in the state appendix.
Note that ezLaborManager/ TLM is by default set up to pay the meal period penalty if the employee does not record the commencement of meal period by the end of the fifth hour of work and (if applicable) by the end of the tenth hour of work. If you elect to opt out of the default meal period penalty, we believe that this will increase significant legal risk because an employee can always claim he or she was not able to take their required meal period during the requisite time frame or not at all. This could create a class action situation where the employer would have to demonstrate that and potentially lead to substantial liability in damages, penalties and attorney’s fees. Our recommendation and belief is that opting out of this default is not a risk worth taking.
Click here for more information about California meal period requirements.
Rest Period Requirements and Penalties
California also requires employers to authorize and permit nonexempt employees to take an uninterrupted rest period for a minimum of ten minutes for each four hours works. Employers are not required to provide rest periods to employees who work less than 3 ½ hours in workday. A rest period is considered time worked, and employees must be paid for these periods. Similar to meal period penalties, employers who fail to provide employees with state mandated rest periods shall pay the employee one additional hour of pay at the employee's regular rate of pay for each workday the rest period is not provided. For example, if an employee works an eight hour work day and is not provided a rest break, the employee shall pay the employee for the eight hours worked, plus an additional hour at the employee's regular rate.
Click here for more information about rest period requirements.
Note that ezLaborManager does not automatically pay penalties if rest periods are not recorded. You must therefore ensure that such penalties are paid to the employee if applicable.
