San Diego Missed Breaks Attorney

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California workers are entitled to compensation for meal and break periods thanks to a state Supreme Court decision. In July 2021, the California Supreme Court ruled that employers must pay employees for missed meal and rest periods at a rate that takes into account all nondiscretionary income. This means that employees are to be paid at a rate that is equivalent to their normal hourly rate, as well as any tips or bonuses they may have received during that time.

Rest & Meal Periods Laws in California

Hourly employees working shifts of at least five hours must receive an unpaid 30-minute meal period in which they are completely relieved of all duties and free to leave the work premises. The meal period can be waived by the employee for shifts that do not exceed six hours. A second such meal period is required for shifts that exceed ten hours. The employer is responsible for ensuring that employees take their meal period within the first five hours of work.

Can Meal Periods Be Waived?

Meal periods cannot be waived, nor may an employee leave work a half hour early instead of taking a meal period. Employees must clock-out for the meal period, unless all operations cease and all employees take their break at the same time.

Employees are entitled to one hour’s wages at their regular rate of pay for every day the employer fails to provide a meal period. If employees are required to remain at the job site in order to be available to wait on customers or perform other work but must still clock out for their meal periods, they are entitled to payment at their regular rate of pay for the meal period plus the premium of one hour’s pay. Employees who have not received meal breaks or premium compensation for unprovided breaks are entitled to back pay of one hour’s pay per day.

On-Duty Meal Periods

If the nature of the work prevents employees from being able to leave (such as where a single employee works a convenience store register during late hours), the employee may take a paid “on-duty” meal period, provided they sign an on-duty meal period that states it is revocable by the employee at any time. An employee who refuses to sign such an agreement must either be paid one hour’s premium pay at the employee’s regular rate of pay if required to work through a meal period or given a different shift or otherwise permitted to take an off-duty meal period.

Paid Rest Periods

Paid rest periods of ten minutes for every four hours or major fraction thereof must be provided and made available to hourly employees. The employer must clearly communicate to hourly employees that they are authorized and permitted to take rest breaks, which must come as near as practicable to the middle of the four-hour period. Rest periods may not be grouped together nor taken at the end of the day in order to leave early, unless the employee elects without coercion to waive one or more rest periods.

Unless there is a clear waiver, an employer must make arrangements to freely allow employees to “break” themselves or provide relief employees. Employees are also entitled to one hour’s pay at their regular rate of pay for every day on which they were not provided one or more paid rest periods.

Ferra v. Loews Hollywood Hotel

The decision from the California Supreme Court stems from an initial hearing of Ferra v. Loews Hollywood Hotel. Jessica Ferra worked at Loews Hollywood Hotel as a bartender. She was a non-exempt employee who earned an hourly wage and quarterly nondiscretionary incentive payments such as bonuses. While Ferra was paid her normal hourly rate for her rest periods, she argued that she should be getting paid premiums as well as for tips and bonuses she lost out on making while on her break.

The trial court ruled in Loews’ favor, but Ferra took the ruling to an appellate court. The appellate court upheld the trial court’s ruling, so Ferra took her case to the California Supreme Court. On July 15, the state Supreme Court ruled in Ferra’s favor, saying that non-exempt employees should receive nondiscretionary payments in addition to their hourly rate of pay during meal or rest breaks.

California Break Laws

The required break laws for the state are as follows:

  • Working 0-3.5 hours: 0 break
  • Working 3.5-6 hours: 1 break
  • Working 6.01-10 hours: 2 breaks
  • Working 10.01-14 hours: 3 breaks
  • Working 14.01-18 hours: 4 breaks

A break is defined as ten consecutive minutes that are not interrupted. Rest breaks are intended to be in the middle of a work period so that if a person is entitled to a meal break, the two breaks do not necessarily coincide. An employee is not required to stay on their work premises during their break and can not be required to do any work during their break. However, an employee - by their own choice - can forgo their break as long as their employer isn’t encouraging or forcing them to do so. Meal breaks for California are defined as the following:

  • Working 0-5 hours: 0 break
  • Working 5.01-10 hours: 1 break
  • Working 10.01-15 hours: 2 breaks
  • Working 15.01-20 hours: 3 breaks
  • Working 20.01-beyond: 4 breaks

When an employee is entitled to a meal break, they are to be given at least 30 minutes of uninterrupted time where they are not expected or required to do any work. The meal break must be taken before the end of the fifth hour of the employee’s workday; however, if they do not work more than six hours a day, then they can ask to have that break waived. Meal breaks can also be taken during what’s considered “on-duty” if the employee and boss agree upon it, and that employee would still get compensated for the break. Just as with other breaks, employees are not required to stay at their place of employment for that break.

It’s imperative to note that with any break, it is usually the employee’s responsibility to ensure their break is taken. An employer’s job is to ensure that the breaks are available to employees, but it lies on the employee them self to make sure they take that break.

When to Contact Cohelan Khoury & Singer

If your California employer is not providing you the proper compensation for your breaks under the new ruling from the state Supreme Court, or your employer is not giving you the opportunity to have a mandated break, then contact Cohelan Khoury & Singer. Our attorneys have helped thousands get adequately compensated for their workers’ rights and we will work hard on your case too.