Proposed Legislation Aimed At Clarifying Employee Lunch Breaks

By Nicole Minkow

With the increasing amount of litigation targeted at employers who are not providing employees with legally mandated meal and rest periods, it is critical for California employers to be aware of their ever-changing obligations. As a result, the California Division of Labor Standards Enforcement (DLSE) proposed new regulations in an attempt to alleviate the growing confusion and increased litigation concerning employees’ entitlement to meal and rest periods in the workplace.

According to existing law, which in California consists of the California Labor Code and the Wage Orders issued by the Industrial Welfare Commission (IWC), an employer must provide the employee with a lunch or dinner break of at least thirty minutes when the employee works more than five hours. If the employee works no more than six hours for the entire day, the meal period may be waived by a mutual agreement between the employer and the employee. Furthermore, if an employee works for a period of 10 hours, the employee must be provided a second meal period of no less than 30 minutes. This requirement may also be waived by a mutual agreement between the employer and the employee if the total work period per day is no more than 12 hours. During an employee’s meal period, the employee must be relieved of all work.

“... this clarification will have the effect of reducing an employer’s exposure.”

Additionally, employees are permitted to take “rest periods” in the middle of each work period. Rest periods are calculated at ten minutes each per four hours of work. The penalty for failing to provide employees with the legally mandated meal period or rest period is an additional hour of pay for each work day that the meal or rest period is not provided.

Doesn’t this sound like a lot of fuzzy math and record keeping? The DLSE agreed and therefore proposed new regulations with the hopes of creating greater clarity. The proposed regulations make three significant clarifications.

First, the DLSE intends to clarify when the meal period shall start. The DLSE proposes that a meal period must start “before the end of the sixth hour” of a work period. Additionally, the employee can request to begin the meal period after the end of the sixth hour of work so long as the employee had the option of taking an earlier meal period. This will certainly give the employer and the employee a more flexible window of time concerning meal periods and allow employees to schedule meal periods according to their individual needs.

Second, many employers have interpreted the meal period regulations as a requirement and therefore have started to force employees to take a lunch break, even if the employee would prefer to “work through lunch.” The DLSE recognized this confusion and in the proposed regulations, clarifies what it means “to provide” an employee with a meal and rest period.

Under the proposed regulations an employer will be deemed to have “provided the employee with a meal period” if the employer: (a) makes the meal period available and affords the employee an opportunity to take it; (b) posts the applicable order of the Industrial Welfare Commission; and (c) maintains accurate time records for covered employees.

Employers are also permitted to put an employee on written notice of when a meal period is to be taken by having an employee sign a written acknowledgement. These proposed changes seem to provide employers with more guidance and clarification concerning how to provide a meal and rest period and also give employers a safety net in the event employees refuse to take such a break.

Third, there has been confusion concerning whether the “one hour of additional pay” mandated by Labor Code section 226.7 for failing to provide a meal or rest period constitutes a “wage” or a “penalty.” In the proposed new regulations, the DLSE makes it clear that the one hour of additional pay constitutes a penalty and not wages. Why is this significant? Lawsuits based on failure to pay wages are subject to a three or four year statute of limitations while an employee must bring a lawsuit based on a penalty within one year.

Additionally, an employee is not entitled to recover attorney’s fees or interest as those are only available for the nonpayment of wages and do not apply for failure to pay a penalty. Likewise, the tax implications associated with payment of wages do not apply to a penalty. As a result, this clarification will have the effect of reducing an employer’s exposure.

It’s not clear if and when these regulations will be adopted, but it seems likely that some form of these regulations will become the law in California. We’ll continue to monitor the status of the proposed regulations and provide you with updates when information becomes available.


 

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