I am amazed that, even today, there are still California employers who do not require employees to clock out for meal periods or schedule their employees’ meal periods or rest periods, to ensure that the same are taken in a timely manner. In addition to this, there are still California employers that do not let their employees leave the employers premises during meal periods. If you are guilty of these missteps and operate your business in California, such employment practices invite costly, employment litigation.
What’s the risk, you ask?
Both your past and present employees can sue your Company for class-wide violation of meal period, rest period laws and leave your firm exposed to significant money damages. The period of exposure can also be significant – a window of four years and perhaps longer if the practice has not ceased. These are the lawsuits where employers are facing class action claims for millions of dollars.
Why would you ignore the mandates of California’s Wage Orders and Labor Code to expose your company to the type of lawsuit that can put you out of business? The answer appears to be a continued lack of understanding of what’s required.
California’s employers have to provide hourly paid, non-exempt employees an off-duty, uninterrupted, unpaid, thirty-minute meal period, each workday, within five hours of the start of each shift. If an employee works more than ten hours in a day, the employer must provide a second, meal period as described. If you violate this rule, you might have to pay for that meal period as hours worked. In addition, you will owe that employee one hour of “premium pay” at the employee’s regular rate of pay for the violation. If you have a habit of violating this rule for all of your employees, then you may face class-wide exposure for violating this rule.
California’s employers have to provide hourly paid, non-exempt employees an uninterrupted, paid, ten-minute, off-duty rest period for every four hours worked, or major fraction thereof. If you violate this rule, you again owe the employee for the time as hours worked and, again, you owe that employee one hour of premium pay at the employee’s regular rate of pay for the violation. As with meal periods, there is risk of class-action litigation where employers ignore these rules.
If you decide, for example, to stack your employees’ rest period with their meal period, which eliminates a rest period in favor of a longer meal period, you have likely violated California’s rest period laws for those employees. If you do this for all of your employees, you invite class action litigation to remedy this class-wide violation.
If you do not let your employees leave your premises during their meal period, you have probably just violated California’s meal period laws, for an entire class of employees (think class action lawsuit) because you did not relinquish control of your employees. Don’t take my word for it, rather, that is part of the California Supreme Court’s rationale, in Brinker Restaurant v. Superior Court 53 Cal 4th 1004 (2012).
If your employees are not clocking out for their meal periods, there is a legal presumption that no meal period was even provided. And, Courts will also allow employee testimony as to whether those meal periods were provided, whether the same were provided in a timely manner, etc., etc., to determine if such violations occurred. Why would you create such risks when the same could have been avoided by use of employee time clocks?
If you are engaged in such practices, or other questionable employment practices related to meal periods and rest periods, now is the time to obtain guidance before litigation commences. In California, an employer needs to install a system and procedure to monitor, identify, correct and pay meal and rest period violations if/or when they occur, to avoid the costly consequences of class action litigation. This is typically done by coordinating the activities of production management with payroll and human resources, using professional guidance as needed to install and bring the system online. Seek such guidance now to avoid the costly consequences that follow inaction.