splitting up meal break to avoid california penalty fee
Arcy1
3 Posts
As a company are we able to break up the California meal break to avoid the penalty?
Scenario: An employee has a meeting or training that interferes with their lunch (1 hour)break.
- Can we as a company require the employee to break up their mealtime and take 30 minutes on their 3rd hour worked, and the remainder 30 minutes after their meeting/training lets say on their 5th or 6th hour worked?
- Can we as a company require them to do this, or is this an option and totally up to the employee if they want to split their meal break?
Thank you
Comments
i am a little confused. i thought california required a 30-minute break? i clipped a FAQ fromt he state. here it is:
http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
Under California law (IWC Orders and
Unless the employee is relieved of all duty during the entireLabor
Code Section 512), employees must be provided with no less than a
thirty-minute meal period when the work period is more than five hours (more
than six hours for employees in the motion picture industry covered by IWC Order 12-2001).
thirty-minute meal period and is free to leave the employer's premises, the meal
period shall be considered "on duty," counted as hours worked, and paid
for at the employee's regular rate of
pay. An "on duty" meal period will be permitted only when the nature
of the work prevents the employee from being relieved of all duty and when by
written agreement between the employer and employee an on-the-job meal period is
agreed to. The test of whether the nature of the work prevents an employee from
being relieved of all duty is an objective one. An employer and employee may not
agree to an on-duty meal period unless, based on objective criteria, any
employee would be prevented from being relieved of all duty based on the
necessary job duties. Some examples of jobs that fit this category are a sole
worker in a coffee kiosk, a sole worker in an all-night convenience store, and a
security guard stationed alone at a remote site.
Hi Regdulop,
Thank you for the quick response. The 30 minute meal break is not in question. The question is, can we force the employee to break up their meal break?
The employee prefers not to break up their meal break from (1 hour) to two 30 minute lunches. The question is can we as the employer force them to take their lunch on their 3rd hour worked and then another on the 5th or 6th hour, due to our scheduling for trainings/meetings?
The employee is stating they are being inconvenienced by having their meal break split up to two different 30 minute breaks and since the company scheduled the training/meetings, they feel they should not be forced to split their lunch time in two different 30 minute sections.
For example:
The employee works 7am-4pm with 1 hour lunch. The employees normal lunch time prior to the 5th hour would be 11:30am-12:30pm. However, due to a scheduled meeting or training that is scheduled between 10:30am -12:30pm. If the employee waits til to take lunch after the meeting or training the employee wil have taken lunch after the 5th hour worked. This will create a California Meal Payout. Therefore, can we as an employer force the employee to take a 30 minute lunch at 10:00am? The employee will have worked 3 hours by 10:00am. Or is this the employees option, since we are already inconveniencing them as it is with the training/meeting?
I have reviewed the California Labor Law books and it does not say that the employees can be forced to take their lunch earlier,when they do not wish to. Has anyone experienced this and/or how have you handled this in type of situation in the past.
Under California law, as I read it (and I've read the law but I'm not a California expert), the employee is entitled to at most 2 separate 30 minute breaks. So the issue of whether you can break up the person's 1 hour break is a non-starter because they are not entitled to a 1 hour break under the law. If you have internal policy, established practice, government administrative code, or a CBA in place saying otherwise, that's a different matter.
My own experience with administering break laws in other states suggests that it's pretty much up to the employer as to when the break is to be taken. The California code does not say that a person can't have their break until after any particular period of time. I can recall in the past situations in which an employee preferred to be let off work 30 minutes early rather than take a 30 minute break in the middle of their shift. That's actually frowned upon in the Department of Industrial Relations Q&A section. Some laws are more detailed than others. For example, in Washington, you can't make someone take their break less than 2 hours from shift start or more than 5 hours after shift start in addition to other specifications about how the break is to be administered.
I don't see anything like that in California 512(a), 800, or IWC wage order no. 1-2001 sec. 11. However, there may be something in regulation that you won't see in the statutes. http://www.dir.ca.gov/dlse/faq_mealperiods.htm
Based on a quick re-read of the meal periods faq for California, I think you are OK with having your employee take one 30 minute break 3 hours into shift and another one later in the day. In fact, in the proposed revision of the regulations, they stipulate that you have to provide a break in the 5th hour of work unless you have already provided one. http://www.dir.ca.gov/dlse/mrpregs.htm
Hi TXHRGuy,
Thanks for the detailed information. This is helpful
Arcy
Hi Arcy,
Glad to help and welcome to the forums!
TXHRGuy
TXHRGuy, could you please show me in CA Law, where is says that an employer can force their employee to take their 30 minute break? I believe it is unlawful to force an employee to take a meal break.
It is my understanding that an employer is only to "provide" a meal break. There is no language in CA Code Sec 512(a) that an employee must accept that provided meal break.
The reason I ask this is because my employer is forcing us to take a thirty minute meal break when we previously did not have to. I am a telemarketer (the good kind, we do exist!) and work only 6 hours a day. I enjoyed clocking in, working for six hours, and clocking out. Now my workday has increased by a half hour. Big deal you say? That is 120 hours per year wasted, sitting around, just because my employer wants to reduce the liability of a potential lawsuit. (I would like that 120 hours to waste as I see fit, not as my employer dictates it to me) As a telemarketer we eat snacks, meals, etc. while we work. So I really do not need thirty minutes to do that. I get up and stretch my legs, get some fresh air every so often, and do not need thirty minutes to do so either. So why do I have to now?
Where is the law that says either the employer can force breaks or that the employee must accept the provided meal break? Or anything even close to that?
It is my understanding that an employer is only to "provide" a meal break. There is no language in CA Code Sec 512(a) that an employee must accept that provided meal break.[/quote]
The discussion about impact on your life is irrelevent to the legal aspect of your question, so I'll cut to the chase.
Nice try. Show me any law that says an employer is required to schedule you to work a solid block of time without interuption or to allow employees to set the schedule of work time.
I hate to answer a question with a question, so I'll give an example here as well. Unless California has a special law (often the beginning of a losing argument but I don't think so in this case), the employer sets the schedule at their whim, not your preference. For example, let's say the employer pays you the greater of state or federal minimum wage plus a commission plan based on outbound telephone sales. Let's also say that the employer only gives you West coast leads and the leads are non-opt in leads for private households and subject to the DNC rules and the leads are appropriately scrubbed. Now, as you probably know, you cannot call these leads between 9 PM and 9 AM. Now let's say the employer schedules a shift from 6AM to 10 AM and schedules a break at 9 AM. That's entirely within the law, despite the fact that you only get 30 minutes of selling time. Now, of course, no employer would have such a shift for a sales person working under these conditions but my point is to demonstrate that it is the employer who sets the schedule, not the employees. Employees, absent a CBA to the contrary, have no power to modify the schedule. So, in short, this notion of "prividing" versus "forcing" is really just a scheduling issue, which is controlled by the employer except in very certain situations.
When you talk about "providing" a break, keep in mind that the employer has to be sure that they can demonstrate that such a break was offered. The easiest way to do that from the perspective of demonstrating in the case of an audit that the company is in compliance with break time laws is to demonstrate that everyone was off for 30 minutes. Payroll reporting saves the day and the audit ends quickly and safely.
I believe the employer can force you to take vacation time as well, even in the 9th circuit.
Hi everyone -- believe it or not -- California law says that employers are not required to force their employees to use their meal period. Employers are required only to provide the break. Employees who work more than 10 hours per day must be provided a second meal period of not less than 30 minutes, except that if the total hours worked is less than 12 hours, the second meal period may be waived, but only if the first meal period was not waived. Under ordinary circumstances, the employee must be totally relieved of work duties during the meal period. However, if the nature of the work prevents the employee from being relieved during meals, the employer and employee may agree in writing to "on-duty" meal breaks. The employer must pay wages for any meal period in which the employee is not totally relieved of duty.
An employer is presumed to have provided a meal period to an employee if the employer:
As an additional guarantee of compliance with the meal period requirement, an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period and get a written acknowledgment that the employee understands those rights.
TXHR - you are right to include a disclaimer about the great state of California - some of our laws are downright weird.
Hi everyone -- believe it or not -- California law says that employers are not required to force their employees to use their meal period. Employers are required only to provide the break. Employees who work more than 10 hours per day must be provided a second meal period of not less than 30 minutes, except that if the total hours worked is less than 12 hours, the second meal period may be waived, but only if the first meal period was not waived. Under ordinary circumstances, the employee must be totally relieved of work duties during the meal period. However, if the nature of the work prevents the employee from being relieved during meals, the employer and employee may agree in writing to "on-duty" meal breaks. The employer must pay wages for any meal period in which the employee is not totally relieved of duty.
An employer is presumed to have provided a meal period to an employee if the employer:
As an additional guarantee of compliance with the meal period requirement, an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period and get a written acknowledgment that the employee understands those rights.
TXHR - you are right to include a disclaimer about the great state of California - some of our laws are downright weird.
[/quote]
The only problem you'll ever run into, as with a lot of these things, is demonstrating that the break was taken or declined short of forcing it (or having a prior written agreement concerning on-duty breaks and the like as outlined above) or adding a lot of admin that may end up costing more than the lost productivity by telling your people to take a break. This could be workable for a small shop with lengthy hours. I wouldn't do it in an outbound call center for a variety of reasons specific to that particular business.
Thanks for dredging up the details!