Give Me a Break! Unwary Employers Face Potential Risks for Noncompliant Breaks

In California, employees who are paid by the hour are entitled to meal and rest breaks. Break rules vary depending on how many hours are worked per day and per week. Compliance poses a challenge, especially for employers of workers deployed in the field. Unlike workers in a traditional office environment where meal and rest breaks tracking is relatively simple, there are unique considerations for tracking meal and rest breaks for employees in the field.

The importance of policies intended to ensure compliance, and avoid meal and rest break violations cannot be understated. Meal and rest break violation claims are a hotbed for litigation in California. They can trigger class action lawsuits on behalf of dozens, hundreds or even thousands of employees, creating potential existential (and uninsurable) threats to a business. Knowing the risks, and developing policies and procedures for meal and rest breaks that comply with California law, and enforcing them, will help minimize the potential for liability for employers whose employees work on-site at construction projects.

California Requirements for Meal and Rest Breaks

In general, non-exempt employees working in California are entitled to receive overtime, meal breaks, and rest breaks. Meal breaks are to be at least 30 minutes for every five hours they work. Employers are not required to pay for this time. However, for a meal period to be unpaid under the California Labor Code, the meal period must also be without interruption, meaning the employee must be fully relieved of all duties. If a manager/supervisor causes an hourly employee to shorten or miss a meal break, the employee is entitled to pay for all time worked during that break, plus “premium pay” for the missed, interrupted, or short break. That premium is one hour of additional pay at the employee’s regular rate of pay.

Occasionally, hourly employees cut their break short, or decide to skip a break entirely. Reasons vary. That could be due to the employee’s choice or a manager/supervisor might interrupt the break if an urgent problem arises on-site. But therein lies an important distinction. Importantly, if an employee voluntarily cut their break short or decides to work through a break, a meal or rest period premium is not required. (But they must be paid for their work.) On the other hand, if the employer causes the employee to shorten or work through a break, then a meal or rest premium is required. To avoid that risk, the employer need only provide the opportunity to be relieved of all duties for the full break period. Whatever the employee chooses to do with the break time is up to the employee. However, keep in mind that proving an employee voluntarily missed a break can be a challenge for employers should litigation arise. Under very specific circumstances, California employers can document employees’ voluntary decisions to waive breaks, thus avoiding risk of penalties. But the safest practice is to insist that employees take their breaks.

Under almost any scenario, late, shortened or skipped breaks can create risk of legal problems, including potential class and representative action exposure under the California Labor Code Private Attorneys General Act of 2004 (“PAGA”). PAGA is a California statute that enables employees to file lawsuits on behalf of the State of California against employers for labor violations. Under PAGA, employees are empowered to pursue civil penalties for the State of California. A large fraction of the penalties recovered goes to the state.  PAGA claims also entitle the attorneys of prevailing employees to recover their (typically substantial) attorneys’ fees. Reducing risk of PAGA claims over break violations is important to California employers.

So What Should You Do? Ensure Employees Working On-Site Are Taking Breaks and Keep Records

For their field workers, employers may consider requiring employees to certify on a weekly basis that they received meal and rest breaks. These certifications can require employees to confirm that, if the employee did not receive a break, the employee reported it to the employer. Certifications are useful when a legal claim is filed, or a California Labor Commissioner investigation is initiated, where a current or former employee claims they were not permitted or authorized to take legally compliant breaks.

California employers should have, maintain, and enforce written meal and rest breaks policies and procedures. It can also be beneficial to periodically remind employees, in writing, of their right to take meal and rest breaks and to train supervisors and/or managers regarding California meal and rest break law. Having a complete risk management strategy, including a dispute resolution protocol, is essential. If everyone on your team is on the same page regarding California’s requirements, it can only help to minimize risk of meal and rest break violation claims.


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