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California Employers Must Fully Document Meal and Rest Breaks

No state is likely more protective of employees than California nor more likely to have more employment-based claims in its courts.  In our last 20-plus years of defending business in such lawsuits, nearly all have included worker allegations of meal and/or rest break deprivation.

This meal-and-rest suit “pandemic” is a combination of our state’s highly technical break rules, the lash-back anger of former workers out of a job (whether or not justified), and, in too many cases, an employer’s lack of thorough documentation of its provision of such breaks.

California employers must provide every not-exempt-from-overtime worker off-duty unpaid meal and paid rest breaks based on the number of hours that employee works in a given day.  As we have detailed in the linked blogs below, the rules vary for such workers as specified in the 17 Industrial Welfare Commission (IWC) Wage Orders covering different industries and occupations.

For an employer’s failure to provide an employee a required meal period or rest break, that business must pay that worker one additional hour of pay/day for any missed meal periods and one hour/day for any missed rest breaks. The employer must include this additional pay in that employee’s next paycheck. See IWC Orders and Labor Code section 226.7.

The Supreme Court of California’s  Brinker Restaurant Corp. v. Superior Court  decision (2012) clarified the meaning of “employer provided” meal periods and rest breaks. Employers are not responsible for policing workplaces to make sure employees take their meals and rest breaks. However, employers must set out and back-up clear policies consistently encouraging and supporting employee prerogatives to take their entitled times away from their labors during the workday.

Yet, even against a conscientious employer careful to observe these rules, meal and rest break claims commonly find their way into employment cases because they are relatively easy to assert and difficult to defend if management has failed to anticipate the need to methodically document its compliant practices.

One common employer error is neglecting to ensure workers clock out for their minimum 30-minute off-duty meals and back in at meal conclusion. The remedy is obvious: impose the clock out-and-in requirement and regularly confirm compliance.

Documenting a company’s provision of the minimum ten-minute off-duty rest periods is not so easy since these are on the clock.  However, management can and should implement a forms system for  its workers to acknowledge in writing that they have taken – and were not deprived of — such breaks (as well as meals) over some period of weeks just passed, with space provided to specify any exception. There are timekeeping software programs that include such features.

Such procedures are not just good practice, enabling management and employees to do their parts in the provision of meal and rest periods.  They are also workable preventative measures against the risk and expense of the way-too-frequent litigation on these issues.
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For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
May 13, 2021