Businesses that involve the continuous flow of customer traffic require the constant attention of customer service employees. These businesses face the difficult task of balancing the need of the business to provide uninterrupted customer service and the need of the employees to rest or take their meals. When employees need to take breaks mandated by law, they have to be relieved of their duties for the duration of the break and another employee must take up their post. Otherwise, the service interruption results in substantial loss of income or other detriment to the company.
Some customer service employees who provide uninterrupted service include parking attendants and cashiers, valets, security guards, grocery cashiers and waiters. To keep the payroll costs down, there is a tendency among some employers to hire only the bare minimum number of employees. However, some employers do not take into account the need for extra staff who can relieve other employees who need to go on lunch breaks, rest breaks, bathroom breaks or unexpected emergencies. Many large and small companies have failed to establish a procedure that enforces and monitors lunch and rest breaks as required by law.
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 suffer through this ordeal. Some would have to work through their lunch and would have to forego the rest breaks altogether. When these practices are tolerated, they could develop into a larger legal problem for the employer. The situation is aggravated when some managers respond to employee complaints of rest and meal break violations by threatening to fire the complainant.
Employers whose business necessities prevent them from giving lunch breaks and rest breaks to their employees can solve this problem by paying their employees the extra hour of compensation that the law requires. Employers cannot just ignore the lunch and rest break rules as if they do not exist. Neither can employers claim as excuse or defense that the employees "waived the right" when they did not take their breaks or they did not ask for extra pay.
The California Wage Orders require employers to provide the meal and rest breaks to hourly workers under the following rules:
Meal breaks. A 30-minute meal period must be authorized 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. 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. When a meal period is waived, the employee is entitled to compensation for all the working time, including any on-the-job meal periods.
Rest period. Rest breaks should be authorized for all employees whose total daily work time is at least three and one-half (3 ½) hours. The required rest time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours. If the rest break is not provided as required, the employee shall be paid one hour of pay at the regular rate for each workday that the rest period is missed.
Companies who ignored break time rules learned 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 or excuse violations of the lunch and rest break rules.
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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 University Law Center Washington, D.C. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. (Advertising Supplement)
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