In the last few years, meal and rest break violations have become a popular source of workplace class and collective action litigation. This is especially so under California law, but also under the Fair Labor Standards Act (FLSA). Businesses are always well-served by regularly auditing their wage and hour practices, given the highly technical and ever-changing nature of such laws. Meal and rest period issues are no different. Here are some things your business should look for in order to maintain compliance with break issues.

How FLSA Handles Breaks

Unlike many state laws (looking at you, California), federal law is comparatively simple. At bottom, what businesses need to know is that they must pay employees for all time worked, and if short breaks are offered (lasting between five and 20 minutes), those breaks are compensable under federal law. If an employer provides a meal break, this break need not be paid, but it must be longer than 20 minutes. This is because breaks under 20 minutes must be paid under the FLSA. 

Moreover, any time off the clock while at lunch must be free of any work duties. 

Another popular practice is auto-deducting 30 minutes for a meal. While this practice is not a violation on its face, it can and sometimes does lead to violations when an employee does not take a meal break on a particular day, for whatever reason, but still has 30 minutes deducted. These circumstances can lead to violations of the FLSA because all time worked must be paid. If your business auto-deducts 30 minutes for a meal, it is worth considering whether a different practice would better serve your company. 

State Law and Breaks

While there are a number of states that require meal and/or rest breaks (such as Nevada and Illinois), California is the prime example. For many years, California businesses have experienced a deluge of class action and state Private Attorneys General Act (PAGA) lawsuits in which the primary substantive allegation is meal and rest break violations. 

A number of decisions by the California Supreme Court have led to this landscape, including several decisions in the last few years, such as Ferra v. Loews Hollywood Hotel, LLC, case, which held that the penalty for missed meal and rest breaks is an hour of pay at the employee’s regular rate of pay (rather than at the base rate). Another case, Donohue v. AMN Services, LLC, held that rounding with respect to meal periods is prohibited and a rebuttable presumption of liability exists when time records demonstrate short, late, or missed meal periods. 

So what does California law require? In short, employers must provide employees with one unpaid meal period before the end of the fifth hour of work. If the employee works more than 10 hours, the employer must provide a second meal period before the end of the tenth hour. During this meal break, the employee must be wholly relieved of any work duties and must be able to leave the facility. 

Notably, however, employees can waive meal periods by agreement under certain circumstances under California law. A first meal can be waived, by agreement, if the employee does not work more than six hours in a day. A second meal period can be waived, so long as the employee did not waive the first meal period and does not work more than 12 hours in a day. 

In addition to meal periods, California employers must provide one paid 10-minute rest period every four hours of work or a major fraction thereof. In other words, a break must be provided when an employee works more than 3.5 hours. The rest period should be given as close to the middle of the four-hour period as possible. Further, like meal periods, a rest period must be free of any work duties. 

Employees may skip their rest breaks, but this must be voluntary and not a result of pressure by the employer. Rest breaks can be particularly tricky for businesses because they are not tracked by time records, making it difficult to monitor whether the breaks have been taken. Businesses in California should be sure to have robust policies concerning rest breaks and that front-line managers are properly trained on the issue. 

As always, when it comes to wage and hour matters, seemingly small technicalities can balloon into major issues, including class and/or collective action litigation. If nothing else, the takeaway for businesses is this: review your meal and rest break policies and practices regularly to ensure compliance with federal law and the state laws where you operate. If you uncover an issue, fix it immediately – do not wait for it to become a lawsuit or an audit by the Department of Labor.