Require Employees to Clock Out and Back In on Their Meals

With certain exceptions for specific industries, occupations, and limited situations, California Labor Code 512 and the Industrial Wage Commission Wage Orders require employers to provide non-exempt employees with a minimum 30-minute off-duty meal break starting before the end of the fifth hour of work.  Employers must provide a second off-duty minimum 30-minute meal break for shifts greater than 10 hours.  (“Non-exempt” means not exempt from overtime pay.)

“Off-duty” means the worker is relieved of all duties and free to leave the worksite during the meal period.

Unfortunately for business owners and management, employee lawsuits and Labor Board complaints containing a meal break deprivation claim have become a virtual epidemic over the past decade and more.  A company facing such allegations may well also be at risk of many thousands in back wage and penalty liabilities.

An employer’s conscientious encouragement and promotion of meals is no protection or deterrent against such challenges if management has failed to take the simple – and vital – step of ensuring that workers clock out for the break and back in at break’s end. Without such documentation, a disgruntled former employee can be expected to push such a meal deprivation claim regardless of the truth.

On the other hand, time records routinely recorded and attested as accurate by the employee for each meal break provide solid evidence that violations did not occur. Best practice includes regular management review of such records for any omission and to promptly resolve the matter with the subject worker.

If the employee had forgotten to make the entries, then he/she should correct it personally or, with proper documentation, instruct payroll to make the adjustment.

Alternatively, if the employee missed one or more meals due to work demands on a given day (and not by personal choice), the employer will owe premium pay under Labor Code 226.7 for having caused the missed meal or meals.

Of course, employee-generated time entries can be by any number of systems – e.g., time clocks, via computer or cell phone apps, or even by hand-written notes — so long as they accurately furnish the date and all in- and out-times.  Some computer systems enable explanation of why a meal break was missed, thereby electronically informing the employer whether it owes premium pay.

Of course, another good reason to keep such records is Labor Code 1174, requiring their maintenance and safe storage and permitting the Division of Labor Standards Enforcement to “freely access” any company premises to inspect them.

See also:

• Square Meal Is the Deal – California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Cautionary Tales Episode 27 – Walmart Hit with Six Million Dollar Verdict for “Discouraging” Off-Site Meal Breaks (May 23, 2019)
• Cautionary Tales Episode 24 – Unpaid Wages and Attempt to Evade Consequences Result in Seizure of Owners’ Assets (June 16, 2019)
• Required Meal Periods and Rest Breaks Revisited – Off-Duty Time During a California Working Day (April 12, 2018)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Tim Bowles
June 4, 2021