Q: I WORK 8 hours per day at a service-oriented industry. I was told that I am entitled to a lunch break and two rest breaks daily. But because we are so busy I sometimes miss my lunch or I work through my rest breaks. There are times when I miss both lunch and a rest break. Is it true that my employers are supposed to pay for my missed breaks? If so, how much am I entitled to?
A: Yes, employers must pay employees for missed breaks. Under the law, a 30-minute uninterrupted meal period must be provided to employees for every 5 hours of work. During the meal period, the employee must be relieved of all duties. 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.
The law also states that rest breaks must be provided 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. The time allotted for rest breaks is counted as minutes or hours worked and are paid.
Employers should not 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.
The question is, what if an employee was not provided both a meal break and a rest break? Is the employee entitled to only one additional hour for missing both breaks? Or is the employee entitled to two additional hours? These are the very questions that employees of UPS recently brought before the California Court of Appeal.
Employees sued UPS seeking compensation for UPS’s failure to provide meal and rest periods. The employees argued that because UPS failed to provide both meal and rest periods, the law entitles them to two hours of payments per work day – one for failure to provide meal periods, and another for failure to provide rest periods. UPS argued that only one hour of payment is allowable per work day, regardless of the number or type of break periods that were not provided.
The Court of Appeal decided in favor of the employees. Wage orders provide a separate remedy for violations of a meal period or violations of a rest period. Hence, employees are entitled to two hours of payments per work day – one for each type of violation.
The Court looked at the lawmakers’ intent to provide an incentive to employers to comply with labor standards and compensate employees when those standards are violated. If no additional premium wage was provided when the second type of violation occurs, this would encourage an employer to require an employee who has missed a ten-minute rest break to also miss his or her lunch period.
Meal and rest breaks cannot be taken lightly in the workplace. If an employee loses 2 hours of pay per day, and if the violation occurred for several weeks, months, or even years, how much has the employee really lost? A minimum wage earner who works 240 days in a year may lose $15,360 for a 4-year period. That is a lot of money to simply donate to your employer.
It pays to know your 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 followaing 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.
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