Taking the Right Break at the Right Time

California’s wage and hour laws on rest and meal breaks are pretty straightforward, but even sophisticated employers continue to make errors and incur penalties for violations. In May 2018, some 4,500 home mortgage consultants won $97.2 million from Wells Fargo Bank in a class action over rest break violations.

In 2012, the California Supreme court outlined how breaks are to be taken:

“Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”

Not very complicated. Nonetheless, let’s break it down, as errors are expensive.

Rest breaks are taken on the clock, and do not require documentation. Ideally, breaks should be given, when practical, in the middle of the shift. Rest breaks cannot be used to come in late or leave early, and can’t be combined. Nor can they be combined with meal breaks, which are 30-minute off-the-clock breaks in which employees are relieved of all duties. While employers need not police whether their employees take rest breaks, it is recommended a written policy in the form of a notice employees are required to sign be utilized in which it is expressly conveyed employees are permitted and authorized to take 10 minute duty free rest breaks for every 3 ½ to 4 hours worked.

On meal breaks, non-exempt employees are entitle to a duty free 30 minute meal break.. The meal break must be taken no later than the end of the fifth hour of work. So, if an employee starts work at 8 AM, she or he must take a meal break no later than 1 pm. Employees are free on their own to work during their meal break as employers are not required to police employees on what they do during their meal break. Employees must clock out and then clock in when they take their duty free unpaid meal break. Penalties are paid directly to the employee in the form of an hour’s wages.

There are circumstances in which an employee can waive a meal break. For example, if a shift is 6 hours long, an employee can waive the meal break orally, though we recommend it be done writing, electronically or otherwise. If employees work 10 hours or more, they are entitled to a second meal break. Employee may waive the second break, as long as they didn’t waive the first break, the shift lasts no more than 12 hours, and both employee and employer agree. Again, we suggest this be done in writing.

Consult your employment lawyer if you find your HR department or individual managers need a refresher on this important area of law.