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Meal and Break Penalties? California

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  • #31
    You should by California law get a 30 minute meal period and 1 rest period minimum per 6.50 hour shift.

    You can file a claim with the DLSE.
    http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
    http://www.dir.ca.gov/dlse/Policies.htm
    http://www.dir.ca.gov/dlse/DLSE-Forms-Wage.htm

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    • #32
      Can you email that code area

      So i can print it and show her!! c.rametes At Gmail . Com

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      • #33
        It's possible that your job is subject to an "on duty waiver." From the California DLSE website: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

        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.

        Do they have anyone available that can relieve you for a meal break? Did you sign anything when you were hired? All of my employer's clients are hospitals and many hospitals have jobs that requires such as waiver. However, you would have had to sign an agreement. And, you must be paid for the full time you work, e.g. if you work 6.5 hours, you must be paid for 6.5 (no time being subtracted for lunch).

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        • #34
          I am a one on one aide to an autistic child. In his school! I never signed anything about lunches or breaks. I was doing home Discrete Trials for along time and i only worked 2 hour sessions before moving to the next case and home! Now i am at work 6.50 hours. There isn't anyone to relieve me the teacher is there to watch her student. Other then that it's just me with him in his class assisting him with her daily needs!

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          • #35
            It's very possible, then, that your job would quality for the on duty waiver, but you would still need to agree to it. I would talk with your employer first to see if they are willing to comply with the law and pay you for past missed meal breaks. You can discuss whether you are willing to sign a waiver or not and go from there. Of course, you could just go ahead and file a claim, but I would start with the employer. Many of them are ignorant of the law and not willfully disobeying it.

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            • #36
              This is going to be a very soft answer, because I am not sure that I am correct. However:
              - There are actually many possible classifications that are Exempt from overtime. Under CA rules, one of them is Personnal Attendants.
              http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm
              - There was a discussion a while back between Michael Tracy and someone else about CA meals rules. One of the interesting points is that the Wage Orders (regulations) tend to make a distinction between Exempt and Non-Exempt employees and the meals rules. This is a distinction that does not actually exist in the CA labor code. There is apparently a rather strange situation where according to CA law the meals rules apply to all employees, but according to CA wage orders, only Non-Exempt employees are eligible for penalties. And the CA labor code defer the penalties to the wage orders, so this situation is not inherently illegal. [It is not like this stuff is actually supposed to make any sense].

              The key phrase in the CA-DLSE rules that everyone has been referencing is If an employer fails to provide an employee a meal period in accordance with an applicable IWC Order.... If you take a hard look at the fine print of most wages orders, there are a number of sections that only apply to Non-Exempt employees and the meal rules are in one of those sections.

              There is a chance that the OP may not actually be eligible for meal and break penalties. On the other hand, this is fairly obscure, and the employer may not be aware of this at all, even if my reading is correct.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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