Q: I AM an hourly employee who works in the retail industry from 8 am to 4:30 pm. We were told by our manager that we are entitled to a 30-minute unpaid lunch break every day. Thirty minutes is automatically deducted from our daily work hours. But there are days when we are so busy that we cannot take lunch or we take our lunch while working. Should we still be deducted for 30 minutes if this is the case?
A: No. If you did not take your lunch break or ate while you worked, you should not be deducted for 30 minutes at all. In fact, not only should there be no deduction, your employer should also pay you an additional one hour at your regular hourly rate for being unable to take an uninterrupted 30-minute meal period.
Additionally, working through your lunch period while completing your 8-hour shift may result in you working 8.5 hours for the day. Any work performed after 8 hours entitles you to overtime pay.
Under California 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." The meal period will then be counted as time worked and must be paid. Therefore, if the employee is able to eat but is not relieved of duty (for example, waiting to answer phones 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 also be liable for penalties.
Employers whose business necessities prevent them from giving lunch breaks cannot simply ignore the lunch break law as if it does not exist. Some employees are told that they can get their breaks only when they are not busy or when they have an available reliever. Since they may always be too busy to leave their assigned posts and there is no reliever available, employees may simply work through their lunch or skip lunch altogether. If they do so, employers cannot claim as excuse that the employees "waived the right" to their breaks.
Companies who ignore break time rules eventually learn the hard way that they cannot sacrifice the employees’ welfare for the company’s bottom line. In 2005, one of the world’s largest retailers was ordered to pay over $170 million in damages to about 116,000 of its former and current California employees for this violation. Several restaurant chains have faced similar lawsuits to recover compensation for workers’ missed breaks.
These lawsuits serve as an important lesson to employers everywhere: The needs of the business do not justify violations of lunch break laws. 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 them to exercise these rights.
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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. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
( Published September 11, 2010 in Asian Journal Los Angeles p. C3 )
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