Employers May Soon Get a Break: California Administrative Agency Continues Hearings on Easing Rules Concerning Employee Meal Periods

The meal break rules put into effect in 2000 have been the bane of employers because as they presently read, an employer is forced to act as the "meal break police," ordering employees to leave and take a 30 minute meal break after five hours of work – whether they want to or not – and to discipline those who do not. Employers who do not enforce the rules have found themselves in costly class action lawsuits.

Relief may be on the way. Proposed regulations are currently the subject of hearings scheduled for public comment on February 4, February 8 and March 2, 2005. The public comment period ends March 2, 2005.

The proposed regulations govern three aspects of the meal period law: (1) when a meal period must be given; (2) how an employer must meet the requirement to provide an employee with a meal period; and (3) the length of time an employee may recover penalties for an employer’s failure to comply with the meal period law.

As we explain, the proposed regulations generally make compliance with the meal period requirement easier for employers, and also reduce (but do not eliminate) an employer’s exposure for failing to comply with the meal period requirement.

Existing law, codified in Labor Code section 512 and the appropriate Wage Orders of the Industrial Welfare Commission, requires employers to provide meal breaks to their employees who work more than five hours per day. The DLSE, taking a strict interpretation of the law, penalized employers who had their employees start their breaks only minutes after the fifth hour of the workday. The penalties were not insignificant: for every day an employee missed a meal period, or the employer was late in providing a meal period to an employee, the employee was entitled to a penalty equal to one hour of the employee’s regular wage. Moreover, in stating that employees had to "provide" employees with a meal period, it appeared that existing law requires employers to mandate that their employees take their meal periods. If an employee failed to heed the employer’s demand, the employer would still be liable for the penalty; the employer’s only recourse was to impose discipline against the employee if they failed to take their meal periods prior to the fifth hour of the workday.

Employers often face employees who do not want to take a meal period, or employees who neglect to take them. In addition to potentially having to pay the employee overtime compensation (an employee scheduled for an 8.5 hour shift who failed to take the meal period would work .5 hours of overtime), employers would be under the old rules, as noted above, subject to potential penalties for failing to "provide" the employee with the break, even if the employee was at fault for not taking the meal period. The new regulations, contained in 8 Cal.Code.Regs. § 13700(a), state that an employer meets the requirement to "provide" an employee with a meal period by the following:

• making the meal period available to the employee and giving them an opportunity to take the meal period
• posting the applicable Industrial Welfare Commission Wage Order governing the employer’s wage and hour requirements
• maintaining accurate time records for covered employees regarding their taking of meal periods

In addition, "as a further precaution," the employer can obtain from the employee a written acknowledgment that the employee understands his or her legal rights concerning meal breaks. This represents a slight change from the emergency regulations. Under the proposed emergency regulations, an employer could meet its meal period requirement simply by getting an employee written authorization; under the new proposed rules, a written acknowledgment is simply a "further precaution" for compliance, and does not constitute, by itself, employer compliance with the meal period requirements.

The new regulations provide some additional flexibility regarding when a meal period must be taken. Generally, an employer must provide an employee with a meal period for five hours of work; however, the employee and the employer may mutually agree to waive the meal period provided the employee does not work more than six hours per day. In addition, the regulations also provide that an employer may, upon the request of the employee, commence the start of the break even after the start of the employee’s sixth hour of work. However, as a precaution, employers who make such an agreement with their employee should affirm in writing the employee’s desire to take their meal periods after six hours of work. Finally, under the new regulations, the employer needs to provide the opportunity for a meal break; the employer need not mandate it, as is the case currently. Thus, if an employee refuses or forgets to take a meal period, the employer will not be liable for the error, provided the employer has afforded the employee the appropriate opportunity to take a meal period.

The proposed regulations specifically provide that the one-hour per day premium for violating the meal period rule is a penalty and not a wage. While seemingly only a technical difference, the impact is significant. Employees can recover unpaid wages for the past three or four years as well as waiting time penalties and attorneys’ fees; however, the employee can only recover penalties going back one year, and cannot recover waiting time penalties or attorneys’ fees when seeking recovery of a penalty. Thus, the DLSE’s decision that the hour per day premium is a penalty dramatically reduces employers’ exposure in these types of cases.

In view of the new regulations, employers should immediately do the following:

1. make meal periods available to their employees as required by law
2. ensure that the applicable IWC Wage Order is posted at the employer’s site
3. maintain accurate time records for employees taking meal periods, noting the beginning and end of the meal period
4. obtain written statements from employees acknowledging that the employee understands his or her legal rights to a meal break

Once adopted, the proposed regulations, while not as favorable to employers as the original emergency regulations, will still provide employers some flexibility in handling employee meal period issues.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.