MEAL PERIOD CLASS ACTIONS

The newest areas of class action lawsuits against employers has arisen from the alleged failure to provide meal periods. Employees bringing these actions seek not only compensation for the unpaid meal period, but also penalties, attorney fees and costs. Thus, it is critical that an employer review the company's meal period procedures to insure compliance with California law.

California Labor Code section 512, regarding relevant wage orders, provides an employer must give a nonexempt employee working more than five (5) hours per day, an unpaid meal period of at least thirty (30) minutes. If the nonexempt employee works more than ten (10) hours per day, an additional thirty (30) minute meal period must be provided. It is important that an employee is relieved of all duties during the entire thirty (30) minute period for it to be valid.

An employee and employer may waive the thirty (30) meal period if an employee does not work more than six (6) hours and the employee and employer mutually agree that the meal period may be waived. In addition, if an employee works more than ten (10) hours per day, the second meal period may be waived if the employee does not work more than twelve (12) hours that day, the employee and employer agree to waive the second meal period, and the first meal period has not been waived.

On-duty meal period agreements are valid under limited circumstances. On-duty meal periods are only permitted for an employee who has worked over six (6) hours when (a) the nature of the work prevents an employee from being relieved of all duties; (b) the parties agree in writing to the on-duty meal periods; and (c) the employee is paid for the on-duty meal period. The written agreement must also indicate that it can be revoked at any time by the employee. In addition, there cannot be two (2) on-duty meal periods in one day.

Importantly, it is an employer's obligation to insure that the employee takes the meal period break. Therefore, if an employer knew or reasonably should have known that the employee was working instead of taking the meal break, the employer would still be liable. Because the employer has an obligation to keep payroll records showing the daily hours worked by employees, which include the beginning and ending period of when meal periods are taken, the employer should know if its employee has taken required off-duty meal periods. If an employer fails to maintain accurate time records, the Department of Labor Standards of Enforcement has taken the position that a presumption is given that the employee's testimony of hours worked is sufficient to bring a wage claim. The burden is then on the employer to show that the hours claimed by the employee were not really worked.

In light of the foregoing, an employer should review its procedures and insure that meal periods are provided to employees at a minimum of thirty (30) minutes and that the employee is relieved of all duties unless a waiver or on-duty meal period agreement has been entered. Furthermore, an employer must insure that it has written records showing daily hours worked by employees, including meal period breaks.