Timing of Lunch Breaks

Kymm

In the state of California - does a non-exempt's lunch break need to be taken during a certain "time-frame" of the day, or could he/she take it at the "end of the day" (thus going home 1/2 hr early). This is, of course, with the Manager's approval.

Gillian

Also in California. No, the regulations state that the breaks are to be taken as closely as possible to the MIDDLE of the half day and lunch as close as possible to the middle of the shift. If somebody decides that the middle is as the end you risk a hearings officer stating the break or lunch wasn't taken at all and that the employee merely went home early. The penalty for not taking breaks or lunch is one hour straight time pay each day that they are not taken. There is a legal opinion letter from the Labor Commissioner that states that the employer will not be penalized if the employee is authorized to take a break but "freely chooses without any coercion or encouragement" to forego a break. If you elect to do this I would certainly want it in writing. On the other hand, if you take advantage of this leeway, the idea might spread and you may be sorry that the exception was made. Personally, we have established that breaks and lunch are to be taken as intended and I am not going to share information about the opinion letter. The opinion letter specifically specifically excludes lunch periods from this exception.

Kymm

Thanks, Gillian! Question though - when you say "regulations"...what regulations are you speaking of? (Manager is requesting to see where it states that lunch needs to be taken "close to the middle of the shift".

Gillian

Ah, I've got a manager or two like this, legality over common sense. While the breaks are clear (as close as possible to the middle of the shift) you have to back into the lunch period. A lunch period is required for every five hours of work and can only be waived if the work can be done in less than six hours - then if the work day is over 10 hours another lunch period is required. It is Labor Code 512. There is some flexibility in the scheduling but it is hard to have lunch periods at the end of the day and follow the intent of the labor code. After 35 years in HR, with almost 20 of them in California, I can guarantee that a Hearings Officer will not accept a lunch period at the end of the day so a person can go home early. The Hearings Officer will say that there was no lunch period and the penalty will be one hour of straight time pay for not providing one. That is Labor Code 226.7. My usual reaction to managers who want to game the requirements is to say, OK, and if there are any repercussions you can go to the wage claim hearing and if there are other employees who want to do the same thing because of the exception I will refer them to you. That usually takes care of it.