How to limit your liability in wage and hour (PAGA) cases with meal break waivers

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California employers and dealerships are regularly getting hit with class action wage and hour claims, or lawsuits under the Private Attorneys General Act (PAGA), which presently allows a single employee to bring claims for all others who suffered any violation of numerous labor statutes.

One common issue in these cases is meal breaks. Employers should be aware of potential meal break pitfalls. This article will help you avoid them. Most employers are aware that they must provide off-duty meal periods of at least 30 minutes whenever an employee works an average 8-hour shift, and that these times must be tracked via a time clock or other system. But, what happens if an employee only works 6 hours? And what if on one or more days, an employee such as a car salesperson is scheduled to work bell to bell (open to close), which can sometimes be a 10-12 hour shift?

In fact, the precise requirement is that the first meal break must be provided whenever the employee works more than 5 hours, so the break must begin no later than the end of the employee’s fifth hour of work. So, an employee who starts work at 9 am must begin the first meal break no later than 2 pm. If the employee is scheduled to work more than 10 hours (i.e., 9am to 9pm), s/he is entitled to not one, but two meal breaks of at least 30 minutes each, one before the end of the fifth hour, and one beginning before the end of the tenth hour of work. In this example, the second break would begin no later than 7:30 pm. It is important to document that these breaks are offered by having compliant written policies, training managers on the details of the policies, and encouraging breaks. In the 12-hour example, the employee would also be entitled to a third 10-minute paid rest break, in addition to the two typically owed in an 8-9 hour workday.

However, many employees, especially those who earn more based on production, are willing to waive these meal breaks (as allowed by law), in the following circumstances:

  • An employee can agree to waive the meal break if he or she works no more than 6 hours in the day.
  • An employee can also agree to waive the second meal break if he or she works no more than 12 hours in the day and did not waive the first meal break.

Employers should consider offering optional written waivers of the aforementioned meal breaks, to be reviewed and signed by employees, with the clear ability to revoke the waiver at any time in writing. This way, whenever the employee works more than 5 but 6 or less hours, s/he can waive their meal break, and whenever s/he works 10-12 hours, s/he can waive their second meal break. Having this one-time waiver executed and on-file for all such occurrences can reduce liability for meal break claims. Employers should ensure that the waivers are voluntary and revocable to ensure fairness. If an employee does not clock these breaks, in the absence of a written waiver, the employer will be responsible to prove that the break was provided. Since proper record keeping for meal breaks falls on the employer, this is a small but powerful tool to keep in your arsenal against meritless claims.

Employers should also note that while the rule is that the first meal break has to start within the first 5 hours, expecting an employee to take it at exactly that time is not wise because there’s no margin for error. If a salesperson is in the middle of a sale, or any employee is in a meeting with a supervisor or talking to a customer, and begins this work 4 hours and 50 minutes into his/her shift, that employee is likely to be forced by business reasons (not personal preference) to take a late lunch, and that requires a one-hour premium to be paid to the employee for that day. Additionally, even paying this premium may not necessarily protect the employer from a PAGA claim for failure to provide the timely meal break in the first place.

Employers should also consider having a means by which employees sign off on the fact that they were provided all meal periods available to them under the policy, OR identify any missed meal periods. This can be the same form on which they review and verify their hours. It’s good to have these forms as a defense against future litigation, and this strategy was discussed in more detail in a previous article.

Please contact experienced employment counsel to discuss the specifics related to your work schedules.