How to Avoid Costly Penalties for Missed Meal Breaks

As discussed in Bowles Law Report Volume 8, Issue 3, California courts have differed on what it means to “provide” hourly, exempt-from-overtime workers their meal and rest breaks. Until the California Supreme Court clarifies labor laws on breaks, we advise employers to err on the side of caution and require workers to take all applicable meal breaks.

California Labor Code Section 226.7 requires employers to pay non-exempt employees an additional hour of pay for each meal or rest period the employer fails to provide.  In August 2007, the California Supreme Court found this additional pay fit the legal definition of “wages” and was thus subject to a three-year statute of limitations.  See  Murphy v. Kenneth Cole Productions Inc.

For example, if a full-time non-exempt employee was misclassified as exempt-from-overtime and thus consistently did not take her uninterrupted thirty minute meal breaks, she can file a claim for one additional hour of pay for each missed meal period going back three years from the date of her claim.  Multiply this by a number of employees and the cost for employers can be exorbitant.

California employers are currently awaiting further clarity from the California Supreme Court as to what break labor laws define as “providing” meal breaks.  The issues are (a) whether they must ensure their workers’ meal breaks are taken without fail, such as by literally policing their employees and enforcing meal breaks; or (b) whether they simply need to make meal breaks available to their staff without necessarily verifying staff actually took those breaks.

The uncertainty should be resolved once the California Supreme Court rules on Brinker Restaurant Corp. v. Superior Court.    Although both sides have submitted their written arguments (briefs), as of March 12, 2010 the Court has yet to set oral argument.  The Court has 90 days to issue its ruling after that argument date.

In the interim, employers should take all reasonable measures for ensuring non-exempt workers actually take timely, uninterrupted meal periods.  Such measures include:

• Audit meal and rest period policies and practices to ensure they comply with applicable breaks labor laws;
• Ensure all non-exempt employees read and acknowledge in writing their understanding of the company’s meal and rest period policies;
• Determine if any exception applies for mandatory unpaid meal periods, such as an “on-duty” meal period and, if so, properly document such exception by written agreements in compliance with California law.  See our blog article ” On-Duty Meal Breaks .“
• Have supervisors and managers conduct and document regular monitoring to ensure employees are taking their meal and rest periods and entering their unpaid meal period start and end times on time cards or sheets;
• If a worker is not taking the required meal period, correct the matter; pay the additional hour of pay to the worker if appropriate; document agreement by the worker to take those periods in the future; and discipline the worker for any further non-compliance; and
• Ensure proper record-keeping is in place and maintained for at least a rolling four-year period, or longer if currently engaged in litigation.

If you have any questions, please contact me or any of our other employment law attorneys.   Best, Cindy Bamforth.