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Breaks and Lunch California

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  • Breaks and Lunch California

    CA has unusual laws so thought I would ask about both hourly and salaried employees, we have both. Let's say they work an 8 hour day; are we required to give them 2 15 minute breaks and a 30 minute lunch break? Does that time come out of their 8 hours? In other words are they ending up then really working 7 hours and getting paid for 8? Or do we just make the breaks available and deduct that time from the hourly workers wages? Thank you!!

  • #2
    I will include the pointers to the actual CA rules. The caution is that you are thowing around the terms "hourly" and "salaried" as if they mean something. CA looks instead at whether then employee is Non-Exempt or Exempt. All Non-Exempt whether they are paid by hourly, salaried or some other basis are on one set of rules. Exempt employees however tend to be generally not covered by the CA lunch and break rules.

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

    http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      DAW: Exempt employees however tend to be generally not covered by the CA lunch break rules

      The labor code mandates that ALL employees (exempt and non exempt) be provided a 30-minute, duty-free, meal break when working more than 5 hours a day.
      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 Jennifer Katz View Post
        Let's say they work an 8 hour day; are we required to give them 2 15 minute breaks and a 30 minute lunch break?
        All employers who employ persons in California for a work period of more than 5 hours must give them a meal period of at least 30 minutes. However, if the day's work can be completed for not more than 6 hours, you and your employee may both agree to do away with meal period in a written agreement.

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        Last edited by cbg; 10-18-2008, 06:05 AM.

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        • #5
          Originally posted by Jennifer Katz View Post
          Does that time come out of their 8 hours? In other words are they ending up then really working 7 hours and getting paid for 8? Or do we just make the breaks available and deduct that time from the hourly workers wages?
          Unless your employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered "on duty" meal period and counted as time worked - thus must be paid.

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          ]
          Last edited by cbg; 10-18-2008, 06:05 AM.

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          • #6
            Originally posted by BSPCPA View Post
            DAW: Exempt employees however tend to be generally not covered by the CA lunch break rules

            The labor code mandates that ALL employees (exempt and non exempt) be provided a 30-minute, duty-free, meal break when working more than 5 hours a day.
            True. Of course as Barry knows this only part of story. The rest courtesy of the CA-DLSE manual is as follows:

            45.2.2 Labor Code § 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Labor Code § 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal period requirement. Thus, no premium pay may be imposed on an employer who fails to provide a meal period to an exempt employee.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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            • #7
              DAW: You need to read the question the OP asked more carefully.

              The OP specifically asked, "Let's say they work an 8 hour day; are we required to give them a 30 minute lunch break?" The answer is an unequivocal, YES - regardless of whether the employee is exempt or non-exempt.

              Note: The payment of LC 226.7 premium pay is an entirely different matter.
              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


              • #8
                Would it be also be true to say that the answer is an unequivocal, YES - that there is no legal penalty what-so-ever to employers who fail to follow the lunch law for Exempt Salaried employees?

                And if you disagree with this statement, could you please supply actual support for your theory? Thank you.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  DAW: Would it be also be true to say that the answer is an unequivocal, YES - that there is no legal penalty what-so-ever to employers who fail to follow the lunch law for Exempt Salaried employees?

                  That would be an incorrect statement!

                  Employers who violate the express mandate of Labor Code 512 (e.g., that ALL employees, exempt and non-exempt be provided a 30-minute, duty-free, meal periods) expose themselves to criminal penalties under Labor Code 553 and civil penalties under the PAGA statute - Labor Code 2698 et seq.

                  Bottom Line: While I am always happy to educate you on the law, DAW, the main point of my post was to alert Jennifer Katz (the OP) that the law expressly mandates that employers provide employees (both exempt and non-exempt) with 30-minute, duty-free meal breaks when they work more than 5 hours a day.
                  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
                    The IWC, at least for general industries, also specifically states that meal breaks and rest periods are not required for exempt employees. My version of Acrobat reader does not allow me to copy-and-paste the sections, but see #1 here under Applicability of Order
                    Provisions of Section 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities.
                    http://www.dir.ca.gov/IWC/IWCArticle4.pdf

                    Since Meal Periods are addressed by Section 11 and Rest Periods by Section 12, the IWC appears pretty clear to me.
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                    • #11
                      Patty, I realize you do not practice in California and may not have a full aprpeciation of our laws and the importance (and lack of importance of IWC edicts). Allow me to explain -- our appellate/supreme courts have categorized the IWC as an agency with nothing more than "quasi-legislative" power. On more than one occassion, the IWC has been chastised for adopting Wage Orders that go beyond the simple, plain meaning of the labor code.

                      Point Being: That which the Labor Code provides (ALL employees - exempt and non-exempt shall be provided with an uninterrupted, 30-minute, duty free meal period) can not be taken away by the IWC. As a side note, the IWC was recently blasted by our Courts for adopting language in its wage orders that meal periods did not have to be provided to union employees if the union/company agreed they would be waived. The Courts were quick to point out the Labor Code (the law) provides no such exemption, and the IWC was not empowered to create one.

                      Final Comments: I jumped onto this post because of what clearly was bad advice given to Jennifer Katz (the OP). As I posted above, if an employer fails to provide a California exempt employee with a 30 minute, duty-free meal period when that employee works more than 5 hours, that employer is exposing itself to both criminal and civil penalties. Just a word to the wise (and not so wise).
                      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


                      • #12
                        So, the DLSE Enforcement Manual cannot be relied upon by DLSE investigators. And the IWCs cannot be relied upon by employers because, well, hey, they aren't really laws anyway.

                        Fine system you have going there.
                        Last edited by Pattymd; 10-21-2008, 12:49 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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                        • #13
                          It is not required to provide exempt employees in the state of California with a lunch. Most exempt employees have some sort of contract that outlines their pay. Most exempts are considered professionals and can decide for themselves whether lunch is necessary or not. They use the word "exempt" for a reason.

                          BSPCPA

                          wow man decaf it up

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                          • #14
                            Actually, most exempt employees don't have employment contracts. Anywhere. I've been in payroll over 30 years and worked in California for the first 20+ years of my career.
                            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                            • #15
                              Further Clarification

                              We have a very small company so forgive my ignorance on these matters...I had asked about lunch and break time for our employees and whether or not it's mandatory. The response overall seems like yes, it is. Next question is we do allow them both lunch and break time but if they don't want to take it then they continue to work; is that a problem? Other question; I am not sure how it's determined who is an exempt employee or not...does that have to do with who gets paid for overtime or not? In our case that's salaried do not get paid OT, and hourly do. Anyway, thanks for all of the help! Jennifer

                              Comment

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