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  • California Meal Periods

    There are times we are on a Maintenance Project and the Client (Area Supervisor) wants us to continue through lunch until we are done with the Project and take a late lunch when we are done, which is fine with us because he will pay us the overtime for working through lunch but in a different Unit in the same plant that area Client (Area Supervisor) says since we took a late lunch we are not entitled to any Overtime for taking a late lunch since we did have our lunch,So the question is if we take a late lunch do we get Overtime.

    Thanks

  • #2
    If you actually WORK over 8 hours in a workday, you must be paid overtime in California.
    http://www.dir.ca.gov/dlse/FAQ_Overtime.htm

    The law doesn't require you get your meal break at a specific time during your workday, only that you get one.
    http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      scar: the question is if we take a late lunch do we get overtime

      Your employer needs to pay you for all time worked - including the time you work through lunch. Whether or not you should be paid overtime (e.g., time-and-a-half) will be based on how many hours you actually work. If you are an hourly-paid, non-exempt employee and work work more than 8 hours in a day (or 40 hours in a week), you would generally be entitled to OT premium pay for all hours after 8/day and/or 40/week.

      California Labor Code 512 http://law.onecle.com/california/labor/512.html, specifically provides that your meal must be provided within certain time limites (e.g., an employer may 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). Labor Code 226.7 http://law.onecle.com/california/labor/226.7.html mandates that employers must pay employees one hour of extra pay (in addition to all time actually worked) if the employee is not provided his/her meal period in timely fashion.
      Last edited by BSPCPA; 02-11-2007, 01:49 PM.
      Barry S. Phillips, CPA
      www.BarryPhillips.com

      IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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      • #4
        Originally posted by Pattymd View Post
        The law doesn't require you get your meal break at a specific time during your workday, only that you get one.
        http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
        That is not correct. The meal period must be given at or before the 5th hour of work to avoid the premium for a missed meal period.
        My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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        • #5
          Hmmm, I stand corrected, but the link BSPCPA provided implies that the meal period must commence within 6 hours of starting time, not 5.

          "(a) An employer may 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 may 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.

          (b) Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees."
          Last edited by Pattymd; 02-12-2007, 04:25 AM.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            "An employer may 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".

            Under most circumstances the meal period may not be given after the 5th hour of work, except that if the IWC adopts a working condition order permitting so or under a CBA for employees affected under wage order 1.

            The follwing is an excerpt from The DLSE Enforcement & Interpretations Manual 45.2.9 further backing this interpretation:
            "The Orders require that no employer shall employ any employee for a work period of more than five hours without a meal period, and the
            meal period shall be for no less than least thirty minutes. Thus, if the employee took
            the first meal period in the sixth hour or if the meal period w as for less th an thirty
            minutes, the premium would apply."
            Last edited by Villain; 02-12-2007, 09:58 AM.
            My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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            • #7
              Villain: Under most circumstances the meal period may not be given after the 5th hour of work, except that if the IWC adopts a working condition order permitting so or under a CBA...

              Not so - specifically as it regards a CBA. The California Court of Appeal has ruled that unions do not have the legal ability to bargain away employee meal periods, eventhough the IWC provides for this in various wage orders.

              Bottom Line: What the Labor Code giveth, the IWC and unions can not taketh away.
              Barry S. Phillips, CPA
              www.BarryPhillips.com

              IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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              • #8
                Really? I'm assuming this happened since the publication of the interp. & enf. manual.
                My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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                • #9
                  Not really. The DLSE Manual is a work in progress. It is constantly being updated and modified to reflect changes in the law and court opinions. You can access recent revisions to ther DLSE Manual here http://www.dir.state.ca.us/dlse/DLSE..._Revisions.doc.

                  The case I a referenced above, Bearden v. US Borax, is almost a year old. You can access it here http://caselaw.lp.findlaw.com/data2/...es/b182625.pdf
                  Barry S. Phillips, CPA
                  www.BarryPhillips.com

                  IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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                  • #10
                    It has been updated, true, but I believe much of the manual was wrote almost 5 years ago, in June 2002, hence the title "The 2002 Update Of
                    The DLSE Enforcement Policies and Interpretations Manual."

                    Anyhow I see 45.2.4.1 stating that employees affected under a CBA can agree to a meal period commencing no later than 6 hours into the workday.
                    My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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                    • #11
                      Villain: The manual has actually been updated dozens of times over the past few years. Regardless, this has nothing to with the simple point I was making -- unions can not negotiate away meal periods under a CBA.
                      Barry S. Phillips, CPA
                      www.BarryPhillips.com

                      IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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                      • #12
                        Let me make clear that my intention is not to argue with you, but did you read 45.2.4.1?
                        My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

                        Comment

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