California Wage/Hour Update, No. 2 - April 2013: "Late Breaking" News

by Fisher Phillips
Contact

Boss:  Time for your lunch break.

Employee:  Naw, I’ll just finish up what I’m working on and take my break later.

Boss:  That’s fine with me, but you are free to go now.

Employee:  Gotcha!  Now you owe me a premium for taking a late break!

Is a scenario like this possible?  Well, of course, since some employees will try about anything to find a way to sue their employers for more money.  More importantly, can the employee legally recover a late-meal premium in this situation?  According to a recent unpublished decision by a federal court of appeals, the answer is no. DeLeon v. Time Warner.

A Little Background

As most California employers know, the state generally requires that all employees who work more than five hours must be provided an unpaid, duty-free meal period of no less than 30 minutes, to commence before the end of the fifth hour of work, and a second meal period of similar length if employees work more than 10 hours, to commence before the end of the tenth hour of work.  In most cases, the employee must be free to leave the premises, and the meal period must be documented on the employee’s time record. 

In some situations, an employee may waive the right to be provided with a duty-free meal period, such as when the employee works no more than six hours in a day, or in some cases, when an employee works more than 10 hours, the second meal period can be waived as long as the first meal period was taken and the employee works no more than 12 hours for the day.

In practical terms, this means that if an employee begins work at 7:00 am., the employee must be provided with a meal period to commence no later than the end of the fifth hour of work, or no later than 12:00 noon.  Similar time limits apply to the second meal period if the employee works more than 10 hours.

For each day an employee is denied one or more meal periods, or required to take one or more meal periods later than the times mandated by law, the employee must be paid a one-hour premium as additional wages beyond earnings for actual hours worked.  A similar premium must be paid to any employee denied one or more rest periods, who incidentally must receive 10 minutes of net rest every four hours of work, if practicable in the middle of the work period (and not later).  Importantly, the law now makes clear that you need not force an employee to take a meal period that is otherwise properly scheduled and made available.  That was the holding in the Brinker case decided last year.  On the other hand, an employer also cannot impede or pressure an employee from taking a timely meal or rest period.

Therefore, employers are left with the burden of proving that they adequately schedule meal and rest periods, including relieving their employees of duty so that the meal or rest periods can be taken in a timely manner.  Not surprisingly, some employees are eager to find ways to increase their wages by demanding a meal-period premium, even when employers have diligently made the meal periods available as required by law.

The Decision

Saul DeLeon claimed that Time Warner’s policy required him to complete phone calls before beginning his meal break, which sometimes “forced” him to take late meal breaks.  He also claimed that he was denied rest periods.  DeLeon sued for the late-break premium and the case and state-law issues ultimately ended up being reviewed by the U.S. Court of Appeals for the 9th Circuit. 

In its opinion, the court noted, “If this were true, then Time Warner’s policy might fall within Brinker’s prohibition on “imped[ing] or discourag[ing]” employees from taking timely breaks.  But the court noted that the available call records did not demonstrate that the employee was forced to stay on duty because of lengthy calls.  Rather, the court concluded that “the records suggest that [the employee] decided on his own to continue working through his scheduled breaks.”  Accordingly, the court rejected the employee’s claims (including meal and rest periods) and affirmed the district court’s grant of summary judgment in favor of Time Warner.

The decision makes clear that time records showing missed or late meal periods, standing alone, are not determinative of whether a meal period violation has occurred.  As long as meal periods are properly scheduled and employees are relieved of duty (i.e., not pressured to stay on duty) during the scheduled meal periods, if an employee chooses to delay or perform work during the scheduled meal period, no violation has occurred, even though employees must be paid for all hours they are “suffered or permitted” to work during such meal periods. 

Similarly, in California, employees need only be authorized and permitted to take their rest periods.  If an employee prefers to continue working - and the employer has not pressured the employee to do so - there is no violation.

Looking Forward

Our advice?  Take affirmative steps to avoid situations where employees may later contend that they skipped or took a late meal or rest period because of tight scheduling or other demands you placed on them.  In addition to providing and retaining documentation showing that meal periods were accounted for during routine work load scheduling, obtain signed acknowledgments from employees each pay period that they were, in fact, relieved of duty and were at liberty to take their meal periods during each day of the pay period.  (It would also be smart for these acknowledgments to confirm that they were permitted to take their 10-minute rest periods and that their time records are accurate). 

The best practice generally is to discourage employees from skipping or delaying their meal periods, even if that’s their preference, since the time record will suggest that a violation may have occurred when there was no violation.  Uniformity of time records and scheduled meal periods within the timing guidelines helps to eliminate the disruption and expensive litigation often resulting when employees exploit late time entries which they were solely responsible for.

If employees actually were delayed or denied meal or rest periods, pay the premium along with the employee’s regular wages, and take action to prevent recurrence of the problem.  Determine whether the nature of the employee’s job prevents the employee from being relieved of all duty during a meal period, in which case you and the employee may agree to an on-duty paid-meal-period agreement, which must be in writing, and must include a statement that the agreement is revocable by the employee.

Finally, conduct internal audits and discuss with your legal counsel whether you need to take steps to improve meal and rest period compliance.


For more information contact the author at JSkousen@laborlawyers.com or (949) 851-2424.

 

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.