Human resources managers’ eyes may glaze over when they see another headline about meal and rest breaks. Yet, meal and rest break issues are the bane of every HR manager’s existence and are front and center in virtually every class action, PAGA or single-employee wage case. Here are some concrete suggestions to avoid such claims.
Clarify when meal breaks start and stop
Make clear when meals are scheduled and for how long. Employers and employees are often confused about “must begin by the end of the fifth hour” language. Use an example. If a shift starts at 7 a.m., the latest an employee can begin their meal is at 11:59 a.m.
Consider using a lock-out system so employees can’t clock back in from their meal break until a full 30 minutes have elapsed. There will never be a short meal. If your system can accommodate it, provide a 2-to-3-minute paid grace period for clocking back in.
Don’t allow bosses to fill out time sheets
If employees are in the field (e.g., construction, janitorial), don’t allow the foremen to fill out field sheets that cover meal times. Each crew member must sign off on their meal. It’s too easy for plaintiff attorneys to poke holes in those field sheets if employees are not accountable for documenting their own meal breaks.
Pay for personal phone usage
If employees are tracking their time in the field, it’s often done electronically using a phone app. Remember to pay employees for the use of their personal phone when they use the app.
Never use automatic meal break deductions
Courts hate automatic meal break deductions. Employers can be tempted to use them in more static environments like manufacturing or not-so-easy-to-track environments (e.g., in-the-field workers). Never use them. This rule applies even if all employees stop work at the same time. You can never be sure that everyone stopped or started their meal break at the same time.
No rounding
Relatively recent case law has made clear that employers can never round a meal break, such as 29 minutes up to 30 minutes. Employers should never be rounding any time at any point in the day.
Correctly use meal break waivers
Meal break waivers are useful for short days that are six hours or less, or longer days of 10 hours or more. A new California appellate opinion in April reaffirmed what we had always thought, but what was in dispute: a meal break waiver, signed only once at the outset of employment, is sufficient, so long as it is clear that the employee has the power to revoke the waiver at any time. Don’t make the waiver revocable in writing or on 24 hours’ notice.
Although the court did not expressly address it, there’s no reason to believe that there would be a different result for waiving the second meal in the same manner after working more than 10 hours. Don’t confuse meal waivers with rarely-applicable on-duty meal agreements.
Use an attestation
Other than the timesheet itself, a daily meal and rest break attestation is perhaps the most effective way to protect employers from meal and rest break claims. Many of the electronic payroll systems can accommodate an attestation, done daily. When using an attestation, questions regarding meals and rest breaks appear electronically as the employee clocks out. Employees cannot finish clocking out for the day until they finish answering a few simple questions. Attestations should be daily. Attestations weekly or at the end of a pay period are relatively useless and courts generally discount their value.
Be careful about what the attestation says, however, as I have encountered several situations recently in which even larger payroll services or the company internally has created an attestation that does no good. The attestation should pop up when the system recognizes a defective meal (short, late or nonexistent), or can simply appear every day as the employee clocks out. Employees are required to acknowledge whether they received their meals and rest breaks properly. If not, they’re given multiple choice options that will tell the company whether the non-compliant break was supervisor- or business-driven, versus the employee forgetting or voluntarily skipping or shortening their rest or meal break, or taking the meal late (or forgot to clock back in).
The attestation is especially helpful for rest breaks, because otherwise there is no other record of having taken rest breaks. Do not require employees to record their rest breaks. In my experience, there will be at least a 50% failure rate because employees simply forget to record their otherwise properly-taken rest breaks. It is paid time, so there is no legal requirement to record them.
Be consistent
Consider implementing a 2-4-6 schedule, where workers take rest breaks at 2 and 6 hours, and a meal break at 4 hours. It’s an easy way to remember the schedule. Also, consider ensuring that the meal break is scheduled at 4 hours or perhaps no later than 4.5 hours into the day, so that if employees work past the regularly scheduled meal break time, they still never go past the end of the fifth hour.
Explain what a “net 10-minute” rest break is: time getting to and from the break area doesn’t count toward the 10 minutes.
Educate, document and know the law
Lastly, educate supervisors so they understand their role in the monitoring process and why it’s so important to avoid penalties and lawsuits. Create effective and workable electronic and paper trails, especially using attestations. Pay premiums when warranted and show them properly on the pay stub. Don’t round time.
Educating all workers on these details will help employers protect themselves from the sometimes-overwhelming amount of “gotchas” in California wage and hour law.
Jonathan Fraser Light is the managing partner at Camarillo-based LightGabler, specializing exclusively in representing employers in all aspects of employment law. He may be reached at [email protected].
