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Thread: Meal and Break Penalties? California

  1. #1

    Default Meal and Break Penalties? California

    Let me get this correct...everyday I do not recieve a Meal or Break I am supposed to recieve 1 hour compensation for each meal and the breaks required, correct? I have not been paid for any meal/break penalties for the entire year and I do not take a meal and a break just about everyday (i work 6 hrs/day). I have asked for copies of my timecards and my check stubs so I can figure out some numbers.

    Off the top of my head and guestimating my employer owes me around $1,600 in compensation. Can I file a claim w/ the state if they don't voluntarily pay me or should I take them to court?

    Also, how far back could I go?? I have dates where I would work 12 hrs without a meal from 2005 and 2006. Could I fight for that money also or let it go. 2005, 2006 equal around $600.

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    Before we go any further & just to verify so we give you correct info - are you an exempt or non-exempt employee? Thanks.
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    non-exempt

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    Default Is it possible you signed a waiver?

    California law regarding meal breaks (AB60) allows an exception "Existing wage orders of the commission prohibit an employer from employing an employee for a work period of more than 5 hours per day without providing the employee with a meal period of not less than 30 minutes, with the exception that if the total work period per day of the employee is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee."

    If you only work 6 hours/day, a smart employer would have had you sign a waiver so that you would not be expected to take lunch.

    Also, you would only receive 1 hour of compensation per day, maximum. It is not 1 hour per missed break. So far, the 1 hour penalty only applies to missed meal breaks and not other breaks.

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    The penalty does apply to missed rest breaks, but again only 1 hour per day, no matter how many required rest breaks are missed.
    http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm

    The FAQs don't address compounding of the penalty for a day in which both the meal break and at least one rest break is missed.

    Martinigirl, have you encountered the above situation before?

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    Default Oops, further info on breaks...

    ...depending on what you do for a living, you may be compensated up to 1 hour per day for missed rest periods per IWC Article 5.

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    Unhappy PATTYMD, I added my next response before I saw yours.

    Yes, I have encountered this before. I work for company that provides time clocks & software to hospitals. We must continually educate employers and employees about California AB60 and Industrial Welfare Commission Order No. 5-2001.

    Most of the hospitals we work with have employees sign a waiver that waives a meal period if work is completed within 6 hours and that same waiver waives 1 of the 2 meal periods that would normally be required for employees working 12-hour shifts. Most nursing personnel work 12-hour shifts.

    This law is very difficult for hospitals because California also mandates nursing ratios. These ratios must be maintained at all times and it becomes incredibly challenging to give nurses a meal break at the appropriate times and cover the nursing unit to appropriate ratios around the clock.

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    Default Most of our clients intrepret the law as requiring...

    ...only 1 hour of penalty to be paid even if both the meal break and rest periods were not taken. I'm not aware, personally, of which way the courts have gone with this.

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    Quote Originally Posted by martinigirl View Post
    ...only 1 hour of penalty to be paid even if both the meal break and rest periods were not taken. I'm not aware, personally, of which way the courts have gone with this.

    Me either.

  11. #11

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    I never signed a waiver stating not to compensate for the missed meals. This company has paid me for som missed meal periods and missed rest periods before.

    I am supposed to get 1 hour per day for missed meal(s) and 1 hour per day for missed rest(s), correct? so If I work 6 hours for 1 day i am suppoed to get 1 meal and 1 rest. but if I wor straight through no rest and no meal i am supposed to get 2 hrs compensation.

    I am waiting for the company to give me copies of my timecards so I can do some math and see what days I worked, ad how mny of those I didnt get a meal break. As soon as I get those copies i will ask the company for the compensation money, if they dont voluntarilty pay me I will file a claim.

    By law can I ask them for interest on the moneythey owe me??? If so, what is a good rate that I should go for???

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    That's what Martinigirl and I are not sure about. Whether the penalty is limited to 1 hour per day no matter what, or whether it's 1 hour for the missed meal period plus 1 hour for (however many) missed rest period(s).

    Can't hurt to ask for interest. Although the DLSE might order interest to be paid (or might not, again I really don't know, since I don't have employees in California any longer, and when I did, we were very strict about making sure the employees took their breaks and meal periods), the employer would possibly rather pay interest than have the DLSE come in and audit ALL the records and discover how many other employees may be in the same situation you are.

    The other thing you have to consider is whether or not your company will fire you for "making waves". Although whistleblower laws would protect you from termination if you filed this claim with the DLSE, whistleblower laws don't normally protect you from termination if all you do is report the violation internally.
    Last edited by Pattymd; 09-27-2007 at 12:24 PM.

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    The California courts recently determined that the 1 hour for missed meal/rest period is a wage and not a penalty. This means that there is a 3-year statute of limitations. You should be able to claim as far back as 2005. Here is a link to an article: http://hr.cch.com/news/employment/042307a.asp

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    Quote Originally Posted by martinigirl View Post
    The California courts recently determined that the 1 hour for missed meal/rest period is a wage and not a penalty. This means that there is a 3-year statute of limitations. You should be able to claim as far back as 2005. Here is a link to an article: http://hr.cch.com/news/employment/042307a.asp
    Yeah, and that also means it's taxable, right? *sigh*

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    I believe so.

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    It is my understanding that ee's can get up to 2 "no break" hours per shift. ! for missing the rest break and 1 for missing the meal period.

    If it was left as a penalty ee's could only go back 1 year. Since it has been deemed a wage they can go back up to 3 years-and in some cases 4.

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    Quote Originally Posted by fensh View Post
    It is my understanding that ee's can get up to 2 "no break" hours per shift. ! for missing the rest break and 1 for missing the meal period.

    If it was left as a penalty ee's could only go back 1 year. Since it has been deemed a wage they can go back up to 3 years-and in some cases 4.
    Not questioning you fensh, just wondering where that "understanding" comes from.

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    From the sources I can find, the recent Murphy decision (that it was a wage and not a penalty) "does not address whether an employer who fails to provide both a meal period and rest break in the same day is liable for one additional hour of pay per missed meal period or rest break or a maximum of one additional hour of pay per day on which one or more meal periods or rest breaks were missed." From http://www.cooley.com/news/alerts.aspx?ID=000040620620.

    Fensh, is there any court decision you can quote or any documentation that outlines this? I'd really like to know.

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    Here is some add'l. reading material re meal/rest breaks Ca. in your spare time.
    On August 2, 2007, California's newly-appointed Labor Commissioner, Angela Bradstreet, held a public hearing to obtain comments regarding meal and rest break laws and regulations in California. This public hearing was sparked by recent court decisions concerning the standard for meal and rest breaks, including Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007), White v. Starbucks Corp., 2007 WL 1952975 (N. D. Cal. July 2, 2007), and Brinker Restaurant Corporation et al. v. Hohnbaum et al. which is currently pending before the Fourth District Court of Appeal. At the hearing, this topic proved to still be a sensitive issue between employers and employees.

    Employers have reason to hope that their liability for missed meal periods may be less than some first thought when the California Supreme Court issued its much-publicized ruling in Murphy v. Kenneth Cole Productions, Inc. Murphy held that that fines arising from meal and rest break violations in California constitute "wages," for which there is a three-year statute of limitations, rather than a "penalty," which would have carried only a one-year statute of limitations. In White v. Starbucks, _ F. Supp. 2d _, 2007 WL 1952975, at *7-*8 (N. D. Cal. July 2, 2007), a federal district court held that California Labor Code § 226 and the IWC Wage Orders’ requirements that employers “provide” employees with meal periods means simply that the employer must offer the employees meal periods; the employer is not required to ensure that the meal periods are taken.

    In White, the court further held that in order to prevail on a meal period claim, a plaintiff would have to show that he or she was “forced to forego” a meal period by the employer. The court reasoned as follows: “The interpretation that [plaintiff] advances -- making employers ensurers of meal breaks -- would be impossible to implement [in industries] in which large employers may have hundreds or thousands of employees working multiple shifts. Accordingly, the court concludes that the California Supreme Court, if faced with this issue, would require only that an employer offer meal breaks, without forcing employers actively to ensure that workers are taking these breaks. In short, the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason. . . .[Otherwise,] employees would be able to manipulate the process and manufacture claims by skipping breaks or taking breaks of fewer than 30 minutes, entitling them to compensation of one hour of pay for each violation. This cannot have been the intent of the California Legislature, and the court declines to find a rule that would create such perverse and incoherent incentives.”

    The plaintiff admitted that any meal periods he missed were as a result of his own decision to skip the meal periods. There was no evidence that Starbucks had “forced [plaintiff] to forego” meal periods. On these facts, the court held that Plaintiff could not succeed on his meal period claim and summary judgment was appropriate.

    The district court’s ruling in White is significant because it does not place the burden on the employer to force employees to take meal breaks. Rather, it simply requires that the employer provide the opportunity to take the meal break. One cautionary note: in reading White, employers must be mindful the ruling was issued by a federal district court. Although the opinion of a federal district court can be used to persuade other state and federal courts to decide the meal break issue similarly, neither the Ninth Circuit nor California state courts are bound by the district court’s ruling.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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    Betty3, this is interesting and helpful, but still doesn't address whether an employer should pay 2 hours of penalties/day: 1 for any missed meal periods and 1 for missed breaks.

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    Yea, I know. I just thought it was interesting "current" info re meal/rest breaks in Ca. I guess I should have just stuck to the question at hand. I don't know/can't find the answer to that question either.

    The info I posted did talk about one hr. pay for each violation but every place you look is different, not clear, or says nothing definite (no court case): Accordingly, the court concludes that the California Supreme Court, if faced with this issue, would require only that an employer offer meal breaks, without forcing employers actively to ensure that workers are taking these breaks. In short, the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason. . . .[Otherwise,] employees would be able to manipulate the process and manufacture claims by skipping breaks or taking breaks of fewer than 30 minutes, entitling them to compensation of one hour of pay for each violation. This cannot have been the intent of the California Legislature, and the court declines to find a rule that would create such perverse and incoherent incentives.”
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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    Betty3, is certainly does mention "per violation." I would think that if an employer was acting in good faith and paid 1 hour per day for any missed meal periods/rest breaks, the court might consider that favorably.

    Most employers we work with are so far out of compliance that even paying any missed meal penalties is a huge step (or being aware that they need to pay it). I appreciate the article you pointed out, I forwarded it to my co-workers.

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    Quote Originally Posted by Betty3 View Post
    I guess I should have just stuck to the question at hand.
    Not at all. That information was useful and interesting.
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    martinigirl & DAW - thank you for the kind words.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    Check out this Web site regarding missed REST PERIODS in California:

    http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm

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    Thanks, fensh, we're trying to find out where California courts are with how many penalties the employer should pay if the employee did not get a meal period or the rest periods. Is it 1 hour for missed meal + 1 hour for missed rest periods = 2 hours (max), or it is just 1 hour for missed meal and missed rest periods. Do you know how California DOL would look at that?

    A lot of our clients are watching Brinker Restaurant Corp. v. Hohnbaum to see what happens, but I think it's mostly about missed meal periods.

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    My company interpreted it as 1 hour for missed meal and 1 hour for missing 1 or both breaks--->so max they could get a day was 2 hours. I am finding this on the DLSE for California Web page.

    REST PERIOD

    "If an employer fails to provide an employee a rest period in accordance with an applicable IWC Order, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided. Labor Code Section 226.7 Thus, if an employer does not provide all of the rest periods required in a workday, the employee is entitled to one additional hour of pay for that workday, not one additional hour of pay for each rest period that was not provided during that workday.

    The rest period is defined as a "net" ten minutes, which means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest."

    MEAL PERIOD

    If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order, the employer must pay one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided. IWC Orders and Labor Code Section 226.7 This additional hour is not counted as hours worked for purposes of overtime calculations.

  28. #28

    Question I was told by my employer i am NOT ALLOWED A Break OR LUNCH!!

    I work 6.50 hr's a day m-f and i am a autism aide, i was told by my that i am NOT ALLOWED To have a break or lunch. She said your paid for the whole 6.50 hours and you don't get a break or lunch! Is this right, or am i completely upset over nothing at all? Please HELP!! PLEASE!!

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    Are you employed in California?

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    Yes i am in California!

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