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6 Hour Shifts: Meal, yes...Rest Break as well? California

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  • 6 Hour Shifts: Meal, yes...Rest Break as well? California

    Hello!

    I am hoping someone can help me with the labor laws in regards to rest periods. I understand the basic outlines and have read all the codes, and if they work 8 hrs it is pretty basic. However, if an employee works 6 hours, do they recieve a 10 minute rest period in addition to the meal?

    Also, the meal breaks must be taken after five hours: does this mean that if a shift is scheduled for five hours exactly no meal is needed (assuming no waivers)? Or is it once it hits "5.00 hours" that a meal had to be given.

    Thirdly, do the waivers need to be signed only once and they are valid until changed, or do they need to be signed per shift?

    Lastly, is the "6 hour mark" the latest they can take their meal? Is there a set guideline for this?

    Thanks for any help you can give. I want to ensure I am following the laws for my team, and still keeping everything running efficently.

    ~Amber

  • #2
    amberfire: if an employee works 6 hours, do they recieve a 10 minute rest period in addition to the meal?

    Yes - rest breaks are in addition to meal breaks

    amberfire: if a shift is scheduled for five hours exactly no meal is needed (assuming no waivers)? Or is it once it hits "5.00 hours" that a meal had to be given

    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 per Labor Code 512. Accordingly if your employee works 5.00 hours on the button, you do not need to provide him/her with a meal period.

    amberfire: Do the meal waivers need to be signed only once and they are valid until changed, or do they need to be signed per shift?

    As general rule, there is no requirement that the waivers actually be in writing - although most practitioners (including myself) strongly advise that all employers mandate this as policy/practice. That having been said, some employers use an individual, "meal-period-by-meal-period," written, waiver system - other employers use a blanket, "good-until-revoked" system. Either system (if correctly implemented) will work.

    amberfire: Lastly, is the "6 hour mark" the latest they can take their meal?

    Up until a few months ago, I would have told you the "5 hour mark." However, a recent Court of Appeal Decision effectively stated there was no requirement that the meal be provided at the 5 hour mark, 6 hour mark, or virtually any other mark - just that it be provided sometime during the shift (e.g., even as early as 30 minutes after the shift starts - with no other meal break the rest of the 8-9 hours of work). The matter is pending Supreme Court review. Write back in a few months, and I will be in a position to tell you for sure.
    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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    • #3
      Thank you!

      Thanks, that helps!

      Comment


      • #4
        If an employee works between 5 - 6 hours the employee & employeer can agree to waive the meal break. Any employee who works 6hrs1sec must be provided a meal break.

        Comment


        • #5
          I've heard it both ways from different lawyers. My lawyer says it must be in writing but others say not. Is there anyone who can direct me to something that can't be interpreted as opinion?

          Comment


          • #6
            The labor code does not specifically require that meal waivers be in writing. Similarly, most IWC Wage Orders do not require this either in most instances - although the Wage Orders do mandate that meal waiver be written sometimes (e.g., employees in the health care industry, employees working alone, etc).

            Bottom Line: As posted above, most labor law practitioners (including myself) advise that ALL meal waivers be in writing - not because it is required by the labor code, but because they go a long way in defending lawsuits. It is much harder (although not impossible) for an employee to prove that he was forced to work through lunch when the employer whips out a signed, employee meal waiver.
            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.

            Comment


            • #7
              Ah okay. So you mentioned employees working alone...

              If you do work alone, is that one of the things that requires it to be in writing? Or are there exceptions to that? The lawsuit I'm involved in right now was based on none of my employees signing waivers but being forced to forego all meal breaks and all rest breaks by corporate. I wasn't allowed breaks, either. We had just one person on duty at a time. I have proof that we weren't allowed in email form - hundreds of them from my complaints - but I'm curious about that now.

              Comment


              • #8
                meal and breaks

                Actually the Brinker decision, the one presumably discussed in this string has just been accepted by review by the California Supreme Court and can no longer be relied on by employers (until it is upheld- if it is- which I believe is unlikely).

                Therefore, employees should feel free to pursue meal and break periods that are not being provided timely in accordance with the Ca labor code.
                Walter

                www.California-Labor-Law-Attorney.com
                "Wage and Hour Class Action Attorneys"

                Disclaimer: The above correspondence does not constitute legal advice nor establish an attorney-client relationship. You should seek the advice of independent legal counsel before relying upon, acting upon or not acting upon any information contained in this correspondence.

                Comment


                • #9
                  rebdomine: If you do work alone, is that one of the things that requires it to be in writing?

                  More specifically the "nature of the job" must prevent the employee from taking a full, 30-minute, duty-free, meal break and the employee voluntarily agrees to an "on duty" meal period. This situation often arises in situations where employees work alone (e.g., night time, building security guard).
                  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.

                  Comment


                  • #10
                    Hmm what if we don't work alone and the other people are able to relieve us of all our duties for our rest breaks of 10 minutes and could very easily relieve us of all duties for a 30 minute break?

                    In the mornings we have 3 people working and we need all 3 people until 10am. After 10am we don't - we can run the store with a minimum of 1 person.

                    However it's company policy that no one can be in the store alone for more than 10 minutes.

                    Does company policy override the fact that we really may not qualify for on-duty meal breaks?

                    For example, if a restaurant decided no one could leave the restaurant for more than 10 minutes as part of their policies, yet they don't qualify for on-duty meal breaks, can they make people take on-duty meal breaks legally just because it's store policy? I guess I am having a hard time understanding where actual store policy comes into play when it contradicts what is in the labor code.

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                    • #11
                      Just because there may not be a law requiring you to take breaks does not mean the employer may not require it.

                      An employer can always do more than the law requires.
                      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.

                      Comment


                      • #12
                        Many meal break policies of aggressive companies who deprive employees of timely meal breaks are invalidated now that the reliance of the Brinker decision as case law on meal breaks is no longer valid until the CA Supreme Court decides on appeal.
                        Walter

                        www.California-Labor-Law-Attorney.com
                        "Wage and Hour Class Action Attorneys"

                        Disclaimer: The above correspondence does not constitute legal advice nor establish an attorney-client relationship. You should seek the advice of independent legal counsel before relying upon, acting upon or not acting upon any information contained in this correspondence.

                        Comment


                        • #13
                          I have a question about the 10 minute rest periods in California. The law says that they're required at the rate of 10 minutes net rest time per 4 hours or major fraction thereof, but that a rest period need not be authorized for employees whose total daily work time is less than 3.5 hours. I also read on the Department of Industrial Relations web site that the DLSE considers anything more than 2 hours to be a "major fraction" of 4.

                          Does this mean that my work day is effectively broken up into 4 hour "work periods", with the last one being an additional "work period" if it's over 2 hours, and that in each one I have to be given a rest break? Or does it mean that I can't be forced to work more than 4 consecutive hours on a rolling basis without being allowed a rest break? Or does it just mean that at some point in my shift I've got to be given the proper number of rest breaks, regardless of when I take them?

                          So for example, if I have a 7 hour shift and I'm given 2 10-minute breaks in the first 2 hours and then a meal after another 2 hours, is that ok or not? Another example. I have a 7 hour shift and I have to take my meal after 1 hour on the clock. I then take a 10-minute break after another hour, and a final 10-minute break an hour before I leave. So I had 4 hours and 50 minutes in the middle of my shift without any kind of break. Is that allowed? My manager always tries to make us take our meals and breaks near the beginning or end of our shifts because we're busiest during the middle.

                          I'm also not sure about exactly what the "major fraction" means. In the example above, where I work a 7 hour shift, I think I'm entitled to 2 10-minute breaks, since even when you take my meal out, I still work 6.5 hours, which is 4 hours plus a "major fraction" of another 4 hours. Is that correct?

                          Thanks,
                          George

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                          • #14
                            GeorgeS, the labor law community is anxioulsy awaiting answers to many of the questions you are asking and the California Supreme Court will hopefully be providing clear guidance when it issues its opinion in the Brinker case.
                            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.

                            Comment


                            • #15
                              Security

                              I work as a security guard alone at a site and was under the impression that I had right to 2 15 minute breaks. The previous posts indicate that I should actually have a 30 minute break for lunch and a 10 minute rest break per 6 hour shift if I'm reading them correctly.

                              My boss raised this issue. He claims that because this is not a labor intensive position I shouldn't require more than 1 10 minute break per shift. I'm trying to understand what the basic obligations and rights are with this combination... 1. Working alone 2. 6 hour shift.

                              His position is that I'm not to leave my post for any reason aside from a duty related issue or emergency. He suggests that I take my lunch at my post and my breaks as well. The nearest restroom is a 4 minute trip so he's not being reasonable from my perspective.

                              So, is there a hard and fast ruling or law in place yet? If so, does my boss need to provide relief/facilities or do I have the right to leave my post?
                              Last edited by kaergon; 11-03-2008, 06:36 PM.

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