Meal And Rest Breaks Lawyer

Not all employees are entitled to meal and rest periods. The law typically only applies to non-exempt employees. The laws do not necessarily apply to exempt employees, independent contractors, and employees subject to collective bargaining agreements.

Exempt Employees

Employees who are often referred to as white-collar employees are not subject to California’s meal and rest break laws when:

• more than half of the employee’s work time constitutes some type of intellectual, managerial, or creative work;
• the employee has independence and exercises discretion while performing his or her duties; and
• the employee earns a monthly salary totaling a minimum of twice California’s minimum wage for full-time employment.

To note, the minimum wage in:

• • Los Angeles as of July 2019 is $14. 25 per hour for employers with 26 or more employees;
  • Los Angeles as of July 2019 is $13.25 per hour for employers with 25 or fewer employees;
  • California as of January 2020 is $13.00 per hour for employers with 26 or more employees;
  • California as of January 2020 is $12.00 per hour for employers with 25 or fewer employees.

INDEPENDENT CONTRACTORS

Independent contractors differ from employees and are generally not subjected to the meal and rest break laws of California. According to Calif. Labor Code § 3353, independent contractors are persons who

• • • perform services for a specific payment upon delivery of a specific result; and
    • retain control over how they perform their services.

COLLECTIVE BARGAINING AGREEMENTS

Should an employee be subject to a collective bargaining agreement, that agreement’s provisions on meal and rest breaks override the laws of California. Employees most commonly affected by collective bargaining agreements are those who work in the following industries:

• • the entertainment or motion picture industry;
  • construction work;
  • some healthcare workers;
  • commercial drivers and the trucking industry;
  • the utility industry, like electrical and gas companies; and
  • security officers.

In California, you can potentially opt-out of meal breaks, but you cannot opt-out of rest breaks necessarily. Rest breaks are already added into the total of your work hours for the day, and so if you were allowed to take them but chose not to, that is your decision and the employer will not be penalized for it.
In regards to opting out of meals, you may be able to do so. You may also be able to opt for on-duty meal breaks (in some limited cases).

Opt-out Of Meal Breaks

When an employee does not work more than six hours in a day, the employee may be able to waive the meal break by mutual consent: both the employer as well as the employee must consent to no meal break.
For example, you are a working mom who can only work 6 hours and needs to get to a child’s school in time for pick-up, so leaving a half hour early will help you. By not eating your lunch, you can make sure you get your six hours of work in and still leave on time.
For employees who work 10 hours per day and, as such, are eligible for two 30-minute meal breaks, the first meal break is mandatory, but the employee can waive the second meal period. To waive the second meal break, the following must be satisfied:

• the total hours worked in the workday does not exceed 12 hours; and
• the employee and employee mutually consent to the waiver.

OPT FOR ON-DUTY MEAL BREAKS

In some cases, employees may be able to take on-duty meal breaks. This only occurs when:

• the nature of the work requires the employee to continue his or her duties or some of them;
• the employer and employee agreed to the on-duty meal breaks in writing;
• the employer pays the employee for the meal break at the employer’s regular pay rate; and
• the employee, except those in agricultural occupations, can revoke the on-duty meal break in writing at any time.

To determine if the nature of the work requires the employee to continue duties during the meal break, the following factors are considered:

• Are the other employees available to provide relief during the meal break?
• What are the potential consequences to the employee if he or she can take a regular off-duty meal break?
• Can the employer anticipate and mitigate any potential consequences?
• Will the work product or process be negatively affected or destroyed if the employee takes a meal break?

Sometimes, an employee may receive payment for missed meals or rest breaks, but this is not necessarily overtime payment.

To receive payment for missed meals or rest breaks, your employer must have called you back to work or otherwise failed to provide you with a meal or rest break. This is true even if you eat while working, you are still working and so a lawful meal break was not taken and you deserve to pay for the time you worked.

When an employer fails to allow you a meal break, it owes you an additional hour of pay at your regular rate. When an employer fails to provide you with two 10-minute breaks during an 8-hour day, it also owes you an additional hour of pay at your regular rate. In some cases, for premium wage employers, an employee may be owed two hours of pay at his or her regular rate.

Remember, however, that if you willingly and voluntarily chose not to take your meal break or rest break, missing it of your own volition does not mean you should receive payment for it.

An employer – if you did not waive your right to a meal or rest break – cannot force you not to take one. At the same time, however, the employer does not have to make you take one.

In 2012, the California Supreme Court ruled in Brinker Restaurant Corporate. v. Superior Court that employers are under no obligation to make sure employees take their meal breaks. The employer only needs to offer the meal period, and it is up to the employee to take it or not.

If you are not allowed to take meal and rest breaks required by law, your employer may be in violation of your rights. You may be owed compensation.

First, you want to keep track of all the meal and rest breaks you were not allowed to take and why – if known – you were not able to take them. You also want to keep copies of your pay stubs or statements to compare and verify non-payment of any missed meal breaks or rest breaks.

Next, you may want to go directly to Human Resources. There may have been a misunderstanding about meal and rest breaks or, if you were owed money for working through your lunch, there may have been an error in accounting. Human Resources may be able to deal with the matter effectively and promptly.

However, if you fear going to Human Resources for whatever reason or the employer failed to correct the matter, it’s time to think about filing a lawsuit or claim with an agency. You will want to speak to an attorney first to know your rights and to learn about all your viable options.

If you believe your right to take a meal or rest break has been violated, you should contact Sirmabekian Law Firm either online or at 818-473-5003. We dedicate our practice to advocating the rights of our clients, especially those who have been taken advantage of by their employers. You work hard for your money, so we will work hard to make sure you are compensated fully and fairly.