How does a California employer prove in litigation that it actually provides rest breaks? How much evidence is enough? Well, after litigating this issue what seems to be hundreds of times, here is the best four step advice I have for California employers:
- Roll out the right policy. It must provide for at least 10 full minutes for every four hours worked (or major fraction thereof), employee can leave the premises, and can’t be interrupted. And of course have proof that the policy was distributed and acknowledged.
- Schedule rest breaks. Yeah, I know, you don’t want to. But if you put the rest breaks on a schedule, and post it, that is proof that the breaks were made available. You don’t want the employees to have to ask a manager for permission to leave, because if they can’t find a manager, they miss the break.
- Ensure there is a Rest Premium code on your payroll, and use it, at least occasionally. There will be times when you are short staffed and someone misses a rest break for work related reasons. That’s ok. Have the manager code a Rest Premium. It is excellent evidence that the code exists, and is used.
- Utilize some form of attestation, preferably daily, but at least weekly or per payroll period, This way the employee acknowledges that all rest breaks were provided, and if not, they let a manager know, so that Rest Premium could be provided. Make sure the Rest Premium is paid (at the regular rate).
Then train your managers and payroll not to mess it up. How can they mess it up? Oh, let me count the ways, such as:
- Ignoring the posted schedules.
- Telling employees they can’t take breaks despite the policy, schedules, and training.
- Interrupting employees on breaks to talk about work or call them back to work.
- Telling employees they must stay on property or check messages during breaks.
- Unsigned policies, or better yet, a policy that no one knows about.
- An attestation protocol that is not used, or not consistently used.
- Rest Premium Code that is never used and/or not paid at the regular rate.
I realize this all sounds simpler than it is in practice. But it is do-able. And the Plaintiffs’ bar knows all of this, so why make it easy for them?
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