Are you aware of all of the requirements of the California break laws? Are you in compliance? In an ERI webinar titled "Meal & Rest Breaks In California: How to Stave Off Employees Hungry to Sue for Wage & Hour Violations," Marc Jacuzzi outlined the basics of employer requirements surrounding employee meal and rest breaks.

Meal Breaks Required Under California Break Laws

According to labor code 512, an employer may not employ an employee for a work period of more than 5 hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee.

Additionally, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

Tips to remember to stay in compliance with California break laws:

• Employers may not require employees to work through their meal periods.
• An employer does not satisfy the obligation to provide meal breaks if policies or practices prevent or discourage employees from taking their meal periods.
• An employer’s obligation to provide employees with an adequate meal break is not satisfied merely by assuming that the meal periods were taken.
• The first meal period provided must commence prior to the end of the fifth hour of work, unless otherwise permitted by applicable wage order.
• There is no “rolling five hour rule” and no requirement to provide a second meal period during the day, even if it has been more than 5 hours since the first meal period, so long as the employee does not work more than 12 hours and has waived the second meal period (10-12 hours).
• Employers have a duty to record their employees' meal periods. Meal periods during which operations cease need not be recorded.
• No employer shall require any employee to work during any mandated meal period.
• If an employer fails to provide a meal period, it shall pay one additional hour of pay to the employee at the regular rate of pay for each work day the meal was not provided.

Rest Breaks Required Under California Break Laws

Rest periods are also part of the California break laws. They state that every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of 10 minutes net rest time per 4 hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than 3 1/2 hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

If an employer fails to provide an employee a rest period in accordance with the applicable provisions of the order, the employer shall pay the employee one hour of pay at the employee's regular rate of compensation for each work day that the rest period is not provided.

Tips to Ensure Compliance with California Break Laws

With these rules and penalties, it's important to ensure you're in compliance. In the webinar, Jacuzzi outlined the proper way to ensure compliance, which starts with recording all time worked, including time in at the beginning of the shift, time out for the meal break, time in at the end of the meal break, and time out at the end of the shift. You can also:

• Implement policies that provide for discipline of employees for failing to track their time or failing to clock out for meal breaks.
• Include a time card disclaimer noting that the employee is swearing under penalty of perjury that everything is true and correct and entered by the employee. You can also have them sign to confirm that throughout the pay period they have been provided with at least a 30 minute meal break and have been authorized and permitted to take two 10 minute rest periods in the middle of each shift.
• Retain time records for at least 4 to 5 years. Jacuzzi noted "it is the employer's burden to have the correct time records . . . If you don't have these records, the employee can raise an inference that they are correct and then the burden shifts back to the employer to show by credible and significant evidence – so the standard is higher – that they actually got their meal periods."

The above information is excerpted in part from an ERI webinar titled "Meal & Rest Breaks In California: How to Stave Off Employees Hungry to Sue for Wage & Hour Violations," with expert Marc Jacuzzi. To register for a future webinar, visit ERI's ERI webinars page.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgilaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.