Meal & Rest Period Resources from FELS

UPDATE: August 2, 2021: California Supreme Court Rules on Meal and Rest Period Penalties “Regular Rate:” On July 15, 2021, the California Supreme Court issued its decision in Ferra v. Loews Hollywood Hotel, LLC holding that employers are required to pay meal and rest break violation premiums at the same “regular rate of pay” they use for paying overtime.  In contrast to the common understanding of “regular rate of pay” for premiums paid to employees for missed meal and rest breaks, the court held that those break violation premium payments cannot be paid at an employee’s base regular hourly rate. Instead, they must include in the calculation nondiscretionary earnings (such as shift differentials, piece-rate and incentive compensation, and nondiscretionary bonuses). Of course, the Court’s decision will apply retroactively to meal and rest break violation premium payments previously made or owed.

California Labor Code section 226.7(c) requires employers to pay employees one additional hour of premium pay at their “regular rate of compensation” for meal and rest break violations.  In addition, Labor Code section 510(a) requires employers to compensate employees for overtime hours worked at premium rates based on the employee’s “regular rate of pay,” which is a term long understood to encompass not only hourly wages but also other nondiscretionary earnings, such as shift differentials, piece-rate and incentive compensation, and nondiscretionary bonuses.

The Supreme Court’s decision in Ferra turned on whether the term “regular rate of compensation” as used in section 226.7(c) for meal and rest break violation premium pay has a meaning that is the same as or different from the term “regular rate of pay” as used in section 510(a) for overtime premium pay. The California Supreme Court decided that the California Legislature intended the two terms to be synonymous.

UPDATE: March 3, 2021:  In a ruling issued February 25, a unanimous California Supreme Court ruled that use of rounding of meal period start and stop times is impermissible under California law, and that employer’s records that do not reflect a compliant meal period raise a rebuttable presumption of non-compliance.  In Donahue v. AMN Services, LLC, the court rejected reliance on rounding in the context of meal periods, saying that “health and safety concerns” that underlay the requirement to offer meal periods “distinguish the meal period context from the wage calculation context, in which the practice of rounding time punches was developed,…even relatively minor infringements on meal periods can cause substantial burdens to the employee.” 

The court also cited a 2012 Brinker decision concurrence from Justice Werdegar to the effect that lack of employers’ records indicating that a compliant meal period did not occur creates a rebuttable presumption that none was provided.   The court indicated that an employer could overcome this presumption “by presenting evidence that employees were compensated for noncompliant meal(s)…or that they had in fact been provided compliant meal periods during which they chose to work.” 

UPDATE: May 29, 2019:  A federal district court ruled in May 2019 that it cannot overturn an action of the U.S. Department of Transportation’s action exempting federally-regulated truckers for California meal and rest period requirements (see UPDATE: February 1, 2019, below.)  As this litigation is ongoing employers may want to continue applying California meal and rest period rules to federally-regulated truck drivers, as noted by this article from Jackson Lewis:

The Ninth Circuit (and, perhaps, the U.S. Supreme Court) will have to decide whether the FMCSA’s preemption Order will govern. Until the Ninth Circuit rules, covered carriers operating in California are left to choose between compliance with California’s meal and rest break rules or assume the risk the Ninth Circuit may overturn the FMCSA’s decision. If a carrier changes its policies and practices in reliance on the FMCSA decision, but the Ninth Circuit later overturns the FMCSA decision, then the carrier could accrue liability for missed California meal and rest breaks, including premium pay.

UPDATE: March 5, 2019:  FELS has created an employer request/employer consent form to memorialize an employee’s request to skip a meal period per Brinker, and the employer’s agreement to it.  It is designed to allow you to add information about the employee’s reason for wanting to do this, strengthening your position that skipping the meal period is voluntary on the employee’s part; you can download that here.

UPDATE: February 1, 2019: In December 2018, the U.S. Secretary of Transporation exercised authority granted under federal law to exempt truck drivers regulated under federal Hours of Service regulations for California meal and rest period regulations.  The State of California had asserted that California’s meal and rest period rules were not preempted by federal Hours of Service regulations. The Secretary of Transportation deemed California’s rules preempted by federal law, finding that state law confounds the effect and purposes of federal safety laws, in this case Hours of Service regulations.  As a result, California may no longer enforce its meal and rest period rules with respect to truck drivers regulated under federal Hours of Service regulations.  You can read more here, and here.  

, and here.

Meal & Rest Period Resources:

Meal period and rest period requirements are a frequent subject of calls to the FELS Sacramento office. These questions stem from one of three concerns:

• The complexity (or at least lack of simplicity) of meal period and rest period requirements;
• The impact of the California Supreme Court’s 2012 Brinker decision. Many employers simply do not yet fully appreciate the impact of Brinker’s clarification that an employer meets its duty to provide* a meal period simply by relieving an employee of all duties, but need not require the employee to cease work and take the meal period*; and,
• The continued “popularity” of meal period and rest period claims in lawsuits with plaintiff attorneys who exploit confusion over meal period and rest period requirements, both among employers who might have failed to comply with them and employees who likewise don’t understand those requirements and are willingly led into lawsuits against their employers (or ex-employers) with the promise of easy money at their (ex-)employer’s expense.
• *Industrial Welfare Commission (IWC) Order 14-2001 (Rev. Jan. 2019) has been revised by the Department of Industrial Relations as required by AB 1066 (Gonzalez, 2016).  This revision of Wage Order 14 adopted regulatory language for meal and rest periods similar to that found in other wage orders — employers employing employees covered by Wage Order 14 are required to “provide” meal and rest periods; earlier iterations of Wage Order 14 required such employers to “authorize and permit” meal and rest periods.

Agricultural employers face huge penalties for failing to authorize and permit rest periods or meal periods as specified in California Industrial Welfare Commission Order No. 14-2001, which covers persons employed in agricultural occupations. It is extremely important for supervisors to know the number of rest periods and meal periods to which employees are entitled.

Meal Periods: General Rules:

1st Meal Period General Rule: Per Wage Order 14: “An employer may not employ an employee for a work period of more than five (5) hours without providing the employee with a meal period of not less than 30 minutes.”

Exception: If a work period of not more than six hours will complete the day’s work, an employer’s duty to provide a meal period may be waived by the mutual consent of employer and employee.

2nd Meal Period General Rule: “An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes.”

Exception: If a work period of not more than twelve hours will complete the day’s work, an employer’s duty to provide a 2nd meal period may be waived by the mutual consent of employer and employee.

The waiver of an employer’s duty to authorize and permit a meal period differs from the skipping or forgoing by an employee (with the employer’s consent) of an authorized and permitted meal period.

Specifically, an employee may (as permitted by the Brinker decision), with the employer’s consent, skip or forgo any—or even all—meal periods authorized and permitted for a workday. In other words, an employer meets its obligation to authorize and permit a meal period by relieving an employee of all duty and giving the employee a genuine opportunity to take it—even if the employee, with the employer’s consent, chooses to work through it.  FELS has created an employer request/employer consent form to memorialize an employee’s request to skip a meal period per Brinker, and the employer’s agreement to it.  It is designed to allow you to add information about the employee’s reason for wanting to do this, strengthening your position that skipping the meal period is voluntary on the employee’s part; you can download that here.

IWC Order No. 14-2001 (Rev. Jan. 2019) contains these provisions for meal periods and rest periods:

Meal Periods:

An employer may not employ an employee for a work period of more than five (5) hours without providing the employee with a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.

An employer may not employ an employee for a work period of more than ten (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.

Rest Periods:

Every employer must authorize and permit all [covered] employees to take rest periods. To the extent practicable, the rest period must be in the middle of each work period (in the employee’s shift as split by one or more meal periods).

Authorized rest period time is based on the total hours worked daily at the rate of 10 minutes net rest time per four hours or major fraction of four hours.

Exception: A rest period need not be authorized for an employee whose total daily work time is less than three and one-half hours.

Thus in general, a covered employee is entitled to 10 minutes of rest for shifts of three and one-half to six hours, 20 minutes of rest for shifts of more than six and up to 10 hours, 30 minutes of rest for shifts of more than 10 and up to 14 hours, and so on.

Authorized rest period time must be counted as hours worked for which no deduction from wages may be made.

This meal and rest period schedule shows varying shift start times, shift lengths, and when meal and rest periods must begin and end in order to comply with the requirements of IWC Wage Order 14-2001 (Rev. Jan. 2019).  Courtesy Tito Martinez, Val-Mar Farms.