EMPLOYER – EMPLOYEE MEAL TIME BREAKS AND PREMIUMS

ISSUE:  Is the Employer liable for a meal time premium if the non-exempt employee either fails to take a lunch or takes a late lunch?

SHORT ANSWER:  Yes, unless the Employer takes reasonable steps to ensure no work for employee during meal time breaks, and expressly encourages the timely meal time. 

This Article looks at what the Employer can do regarding meal times, so the Employer may not be liable to the Employee for the Employee not taking, or who is late in taking, meal times.  The following may not apply in the event of written waivers, or in certain industries (e.g., security guards, see Augustus v. ABM Sec. Servs., Inc. (2016) 2 Cal.5th 257.)

DISCUSSION:  Labor Code section 512 provides the meal time requirement for a non-exempt employee:

                (a) An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

Labor Code section 226.7(c) provides the penalty for failure to provide a timely meal time:

                (c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided.

Regarding meal time, the California Department of Industrial Relations says this:

                “Q.  If there is bona fide relief from all duty during a meal period and the employer relinquishes all control over the employee’s activities, but the employee then freely chooses to continue working, is the employer liable for meal period premium pay?

                A.  No, the employer would not be liable for meal period premium pay where there is bona fide relief from duty and relinquishment of employer control (and no discouragement or coercion from the employer against taking the meal period).  However, in this circumstance, an employer that knows or has reason to know an employee is performing work during the meal period owes compensation to the employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period).”  (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.) (www.dir.ca.gov/dlse/faq_mealperiods.htm (Question 5)).

Further, the referenced California Supreme Court case provides the legal authority for the position set forth above:

                “To summarize: An employer's duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a [timely] meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry.”

                On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).”  (Emphasis added.)

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040-1041) 

In other words, an Employer is not duty bound to police an Employee’s meal time. It is enough for the Employer to clearly make the meal time timely available, instruct the Employee to timely take the meal time and relieve the employee of duties. I would suggest also writing up the recalcitrant Employee who fails to abide by the meal time guidelines, so there is a record, and terminating if there is a pattern of ignoring company policy. 

That is it.  While no result can be guaranteed, if the Employee then takes a late lunch, or no lunch, with that protocol applied, there should be no premium or penalty owed. However, be careful, Employer: If the Employer knows or has reason to know an Employee is performing work during the meal period and continues to allow it, the Employer may owe compensation to the Employee for the time worked (including any overtime hours that have accrued as a result of working through the meal period). In other words, do not turn a blind eye to the Employee that does not abide by the rules. 

DISCLAIMER

This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Offices of Ron A. Stormoen by a signed written retainer agreement.