Updated for 2013 – 2014
1. Establish and communicate clear policies regarding meals and rest periods. You must clearly communicate to employees that you have the obligation to provide meal and rest breaks.
2. Train supervisors to make sure employees get all meal and rest periods that the law and applicable wage orders require. There are Wage Orders which apply to different industries. For example, Wage Order 12, which applies to the motion picture industry, requires meals and different intervals than Wage Order 4, which is the most common. Review the specific Wage Order which applies to your employees with your employment counsel.
3. During meal periods: relieve the employee of all duty, relinquish control over the employee’s activities, permit the employee a reasonable opportunity to take an uninterrupted 30-minute break, do not impede or discourage the employee from taking the meal period.
4. Provide the meal period to the employee no later than the end of the employee’s fifth hour of work. Only employees who work more than five (5) hours in a day must be provided a meal period. If an employee works more than ten hours in a day, the second meal break must be provided no later than the end of the employee’s 10th hour of work.
5. The employee may waive his or her meal period if the day’s work will be completed in no more than six (6) hours, provided you and the employee mutually consent to the waiver. It is a best practice to have this waiver in writing. You must include language in your policy if your company wants to allow a waiver in this situation.
When working no more than 12 hours in a workday, employees may also waive the second of two 30-minute meal periods as long as the first meal period was taken. There must be mutual consent between the supervisor and the employee. This waiver must be in writing. In addition, for employees working more than six (6) hours, an on-duty meal waiver is allowed in very limited circumstances. Consultation with employment counsel is recommended if you desire to implement this policy.
6. Employers need policies and timekeeping records that demonstrate that an uninterrupted 30 minute meal period was provided no later than the end of the fifth hour of work. Require all employees to record the start and end of their meal and rest breaks on their time sheets or other time records. Inform employees that failure to record breaks will result in disciplinary action and do not permit working “off-the-clock.” It is strongly recommended to have employees sign their time records and verify that they have reported all time worked and that they understand that off-the-clock work is not permitted. A preprinted statement on time records can be printed as a footer with this representation. Timekeeping records should reflect that the meal period was provided to the employee by the correct time, regardless of whether the employee voluntarily chose to perform work during the meal period.
7. If an employee chooses to work after being relieved of all duty for his or her meal period, the EMPLOYEE MUST RECEIVE PAY FOR THE TIME WORKED when the employer knew or reasonably should have known that the employee was working through the meal period. You will need to pay the employee straight time pay (or overtime pay if the work put the employee into an overtime situation). The employee who voluntarily chose to work is not entitled to the one hour of premium pay under California law.
On the other hand, if you prevented the employee from taking a full uninterrupted 30-minute meal period, the one hour of premium pay is still owed. PAY ANY PENALTY FOR A MISSED MEAL AND REST PERIOD IN THE PAYROLL PERIOD IN WHICH IT OCCURRED to assure adequate record keeping.
8. IF AN EMPLOYEE MISSES A MEAL PERIOD FOR ANY REASON, HAVE THEM REPORT TO HUMAN RESOURCES (or other office administrator) the reason for the missed meal period. This will allow you to account for the time for payroll purposes and also to monitor why the employee is missing meal periods: Is a supervisor discouraging the employee from taking meal periods? Is the employee voluntarily choosing to work during a provided period and how are you going to address that in order to avoid incurring additional pay obligations?
9. The Industrial Welfare Commission (IWC) Wage Orders impose a PENALTY of one additional hour of pay for each day an employee is denied a meal or rest period. If both a meal and a rest period are denied two hours of additional pay will be owed.
10. PROPERLY CLASSIFY employers as exempt or non-exempt.
11. KEEP TIME SHEETS and other time and payroll records on file for a minimum of four years.
12. REGULARLY AUDIT your timekeeping records to see if there is a pattern of missed meal periods. Audit meal and rest break practices; overtime policies and practices; and time clock, time card and payroll practices to stay in compliance with the current laws.