Senior Associate Attorney
California wage and hour laws are breeding grounds for class actions and ever more popular, Private Attorney General Act (PAGA) claims, that at least for now cannot be avoided with individual arbitration provisions. The bases for many of these claims are things like overtime, meal and rest breaks, all very familiar concepts to employers. In order to ensure compliance, dealers and other employers include compliant policies in their handbooks, and make sure managers are trained not to encourage employees to work through their breaks or off-the-clock. But, should you worry if an employee who comes in at 8 am, routinely doesn't take his lunch until 3 pm because he wants to use the time to pick up his child from school, or another employee always eats at her desk and only clocks 15-minute lunches?
We previously covered the law on timely meal and rest breaks. Failure to provide a timely break results in having to pay the employee a one (1) hour premium per applicable day. However, if the break is offered in a compliant manner and the employee chooses to take it differently, or not at all, that does not require premium pay. Though some of these employees who fail to follow the policy may do so out of zeal for their job, others do so out of pure personal preference or their own convenience (like the employee in the above example who wants to time his meal break with his childcare responsibility). As long as the employee is not skipping breaks or working through them due to the employer's (or a manager's) failure to offer the break or due to the press of business, employers are not required to "police" the break and make sure the employee takes the break, takes it at the correct time, or for enough time.
However, the employee's failure to take timely and lawful breaks can nevertheless create risk and potential exposure for the employer, particularly in a class action or PAGA context, because it will likely be the employer's burden to prove that the breaks were voluntarily skipped or taken in a non-compliant manner. Does this mean you must refuse to let the employee take a late lunch in order to use part of the time to pick up his child from school? No, such alterations can be mutually beneficial and improve employee morale, but should be documented. So, if it becomes known that certain employees routinely take non-compliant breaks, you can take a few steps to mitigate the risk of this voluntary non-compliance potentially being held against your company one day:
- You should meet with the employee to check that the non-compliant breaks are for personal reasons or preference only, and reiterate the policy of taking the full break offered.
- If the employee confirms s/he voluntarily skips or takes non-compliant breaks, particularly if it is for the employee's own convenience (like child pick-up), you should document this in writing, whether in an e-mail to or from the employee (retained for their employee file) or in a memo to file memorializing your conversation with the employee, including a witness.
- You should consider implementing a process to allow employees to sign off on their timesheets, including a certification that the employee was offered all breaks required by law and any non-compliance or deviation from that was due to the employee's own choice, as well as a reminder that if at any time the employee was required or encouraged by a supervisor to skip their break, it is their responsibility to immediately notify Human Resources or another appropriate manager.
Through these steps, you can create a written record for future reference and use if the employee later claims these deviations from the policy were not voluntary or the issue of compliance is raised in a broader (class or PAGA) context.
Still other issues exist regarding employees taking non-compliant breaks, for example, an employee can accrue overtime by taking only a short lunch each day instead of the full hour allotted by the company. In this instance, the employer may wish to discipline employees who work overtime without advance approval (if required) or for failure to follow the meal policy itself. Every situation is unique and we encourage you to contact experienced employment and wage and hour attorneys to discuss your specific circumstance and come up with a tailored practice and process right for your business.