Are employees entitled to both breaks?
Q: I work only 7 hours per day at a brokerage office. Am I entitled to any break? If so, what kind of break should my employer provide for me?
A: Breaks are essentially periods of time during a work day when an employee is relieved of all duties in order to eat or rest or attend to personal matters. Breaks in the workplace are mandated by California law based on a public policy to protect worker health and safety. Meal breaks (or meal periods) are longer than rest breaks (or rest periods). As to when an employee is entitled to either or both will depend on the employee’ total hours of work per day.
Meal Breaks. Under the law, a 30-minute uninterrupted meal period must be provided for each employee for every 5 hours of work. During the meal period, the employee must be relieved of all duties. If the employee is not relieved of all duties, the employee is considered to be "on-duty" and the meal period will be counted as time worked. Therefore, if the employee is able to eat but is not relieved of duty (for example, attending to customers while eating), the employer has still failed to comply with its obligation under the law.
If the meal break is not provided as required, the employer shall pay the employee one hour of pay at the employee’s regular rate for each workday that the meal break is missed. The employer who violates the meal break rule may be liable for penalties in addition to on-the-job meal break compensation.
The law on meal breaks also has practical implications on the employee’s right to overtime. If the employer fails to provide a meal break to an employee who works 8 hours per day, the missed 30 minutes is added as time worked. Hence, the employee is entitled to overtime for work done beyond 8 hours.
If an employee does not work more than 6 hours per day, the employee is allowed to voluntarily agree with the employer to waive the employee’s right to a meal period. In other words, an employee who works between 5 to 6 hours need not be given an opportunity to have a meal break, provided that the employee agrees to waive this right. Because the law requires a mutual agreement, an employer cannot require an employee to waive the right to a meal period.
Rest Breaks. Rest breaks must be given to all employees whose total daily work time is at least three and one-half (3 ½) hours. In other words, rest breaks must be authorized in 10-minute duration for every 4 hours of work, or major fraction of 4 hours. A rest break need not be provided for employees whose total daily work time is less than three and one-half (3 ½) hours. Unlike the meal breaks, the time allotted for rest breaks is counted as minutes or hours worked. Hence, time spent for rest breaks are paid.
The employer has an affirmative obligation to provide workers with these breaks. This duty requires the employer to implement procedures that educate employees of their rights and which allow or permit them to exercise their right.
Remedies for Violations: The law in this matter is very clear: No employer shall require any employee to work during any meal or rest period mandated by law. If an employer fails to provide an employee a meal period or rest period in accordance with the law, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.
Some employees may think that a meal or rest break claim is too small to claim from the employer and it might not be worth the trouble. However, this becomes significant to the employee if the unlawful practice has gone on for years. A minimum wage earner who works 240 days in a year may lose $7,680 for a 4-year period. Moreover, if the employee is in the same situation with many other fellow employees who are also not provided these breaks, then a potential class action might provide an avenue by which these claims can be pursued.
A class action gives employees an inexpensive way to resolve their wage claims, by providing a procedure where the claims of many individuals can be resolved at the same time. This provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual lawsuits. Furthermore, a class action shields the individual employee from the personalized confrontation inherent in individual litigation. Since a class action usually involves a large number of employees from dozens to thousands, the confrontational effect on each class member employee is significantly reduced and the fear of retaliation substantially lessened.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. He is a graduate of Georgetown University Law Center Washington, D.C. and the University of the Philippines. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
( Published April 17, 2010 Asian Journal Los Angeles. p. C3 )
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