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Terminated for not taking breaks? California

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  • Terminated for not taking breaks? California

    I have an employee that is under investigation and possible termination because he or she was not taking breaks on busy work days. The work is retail. The payroll given, is not enough to have proper staffing on duty which causes managers to do all regular work besides manage. On a few of those days he or she did not take a break but another employee adjusted he or shes timecard un knowing a break was not taken. So basically the employee was clocked out for a break even though they did not take one. Is this grounds for a final written warning or termination? There is no company policy on time card edits or working on your break.

  • #2
    California is an "at will" state you need no cause to terminate. that being said falseification of time sheet is any company I am aware of is cause for termination


    • #3
      the timecard on a number of occasions was edited by another member of management that figured he or she took a break. They edited the timecard and added a break for that staff member without knowing for sure if one was taken or not. Its very hard to prove one way or another if an actual break was taken.


      • #4
        You may still terminate as you are an "at will" employer. Furthermore if you have CCTV with time/date stamp that could prove of disprove issue as well. You might further (as preventive measure) tell mangement they are not to alter time cards based on employees word alone.


        • #5
          Warning for whom? The employee who is not taking the break? Yes. The manager who falsified the time card? Yes.

          As you probably know, California is VERY strict about nonexempt employees getting their meal breaks, and only under very limited situations can they be waived.

          Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee’s regular rate of pay. 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 employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 –15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

          If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period

          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


          • #6
            We do have CCTV but it was not used in the investigation. The decision to terminated is not in my hands because the investigation has been given to the HR department. This seems to be a learning process for Loss Prevention and HR as to they were not aware how easy it is to edit a timecard by guessing if someone took a break or not. Should this lack of knowledge be grounds on firing the employee? Or a simple record of counseling.


            • #7
              It is LEGAL for you to fire the employee for not taking the legally required breaks. It is going to be legal no matter how many what-ifs you put on it.

              Whether it is appropriate is situation specific. If you don't think it's appropriate, don't fire him. If you do think it's appropriate, fire him. It's legal either way.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.